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By J.D. Houvener
Patent Attorney and Founder

So you have a new software idea or process. These are probably some of the questions you’re asking yourself:

Can I protect my software invention with a patent?

Is my software eligible for a patent?

Can I secure the exclusive rights to this software invention?

Can I monetize my software invention through patents or licensing?

What is a Software Patent?

What protections do a software patent offer you as an inventor?

Patenting software refers to the legal process of obtaining a patent for a specific software invention. A software patent gives the inventor exclusive rights to prevent others from making, using, selling or importing the invention without permission. This provides protection for the inventor’s investment in time, resources and money, and provides a way to commercialize the invention.

What are the benefits of a software patent?

Also, a software patent can act as a form of collateral for obtaining funding or investment, demonstrating to potential investors that the inventor has exclusive rights to the invention. Additionally, a software patent can provide a competitive advantage, giving the inventor a leg up over competitors who might otherwise be able to use the invention freely. Furthermore, having a software patent can also give the inventor leverage in licensing negotiations and provide a legal basis for pursuing damages in case of infringement.

What is a Method Patent?

Most software patents are granted as method patents. For example, instead of patenting a physical prototype (design patent) or the function of the invention (utility patent), a method patent protects a useful process, method, or system of doing something. Method patents protect the steps or techniques used to perform a particular task or solve a specific problem. Other types of patents that can fall into this category include business patents and medical treatments. Just like other patents, the grant of a method patent gives the owner exclusive rights to prevent others from using the claimed method for a certain period of time, usually 20 years from the filing date.

What Types of Software are Patent Eligible?

It’s important to note that not all types of software can be patented. In order to be eligible for patent protection, like all new inventions, software must be novel, non-obvious, and have practical applications. The software must be a new and useful process, machine, manufacture, or composition of matter.

Patentable software typically includes original and innovative computer programs that solve a specific technical problem or improve upon existing technology. This could include software that performs a new function, or software that implements a new algorithm or method of operation. Software that is deemed purely abstract or theoretical, such as mathematical formulas or algorithms, is typically not eligible for patent protection.

Additionally, software that is considered to be “obvious” or in the public domain is not eligible for patent protection. This includes software that is a straightforward combination of existing technologies, or software that is a simple variation of existing software.

In general, the key to determining whether a software invention is eligible for patent protection is to determine whether it provides a new and non-obvious solution to a technical problem. It can be tricky to answer these questions on your own. The best way to determine if a software invention is eligible for patent protection is to consult with a patent attorney.

Software Patents and the USPTO

The current legal landscape of software patenting is complex and constantly evolving. In recent years, there has been a significant amount of debate and controversy surrounding software patenting, with some arguing that software should not be eligible for patent protection, as it is considered an abstract idea. The United States Patent and Trademark Office (USPTO) has traditionally granted software patents, but has also become more stringent in its examination of software patent applications in recent years, resulting in a decrease in the number of software patents issued.

Example of a Software Patent

Microsoft got a software patent granted with the USPTO in December 2022. It’s titled Transfer Learning System for Automated Software Engineering Tasks. As you can see below, their method patent covers a series of steps for a useful process in the field of software engineering.

Figure 1 (below) is a schematic diagram included in the granted patent that illustrates a transfer learning system for generating neural transfer models with attention to software engineering tasks.

Get Your Software Invention Patented

If you have specific questions about your software invention, it’s important to consult with an attorney. It’s never a good idea to disclose details about your invention with outside sources before getting a patent granted. At Bold Patents, we have a team of well-rounded and experienced attorneys who want to help you protect your intellectual property and ideas. Schedule a free Discovery Call to learn more about how we can help you get your software patent granted. Go big, go bold!

About the Author
J.D. Houvener is a Registered USPTO Patent Attorney who has a strong interest in helping entrepreneurs and businesses thrive. J.D. leverages his technical background in engineering and experience in the aerospace industry to provide businesses with a unique perspective on their patent needs. He works with clients who are serious about investing in their intellectual assets and provides counsel on how to capitalize their patents in the market. If you have any questions regarding this article or patents in general, consider contacting J.D. at