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By J.D. Houvener
Patent Attorney and Founder

In today’s digital age, algorithms are the backbone of numerous innovations, from machine learning applications to data analytics tools. They drive decisions in various industries, such as healthcare, finance, and retail, revolutionizing how we interact with technology. While the process of determining the eligibility of an algorithm for a patent is complex, it is important to understand how to protect these algorithms through intellectual property law to foster innovation and maintain a competitive edge. 

What Is an Algorithm?

An algorithm is a set of step-by-step instructions designed to perform a specific task or solve a particular problem. Think of it as a recipe for a computer, outlining a sequence of operations to execute. Algorithms can be simple, like sorting a list of numbers, or incredibly complex, like analyzing vast datasets for predictive analytics. They form the core of many software applications and technological processes, functioning as the “logic” behind the operations.

Can Algorithms Be Patented?

Algorithms, in their most basic form, are often considered mathematical formulas, and mathematical formulas alone cannot be patented under U.S. law. However, if an algorithm is applied in a specific, non-obvious, and useful way, it may be eligible for patent protection. The U.S. Patent and Trademark Office (USPTO) generally requires that the algorithm be tied to a particular machine or apparatus, or that it causes some sort of transformation or reduction of a particular article to a different state or thing. Thus, while algorithms in the abstract are not patentable, their application in a technological context often is.

Key Criteria for Patenting an Algorithm

To successfully patent an algorithm, there are several key criteria that must be met. First, the algorithm must be novel, meaning it presents a new idea or application that has not been previously disclosed or patented. Second, it must have utility, or a specific, beneficial use, often in a technological context. Lastly, the algorithm needs to pass the subject matter eligibility test, ensuring it is not merely an abstract idea or mathematical formula but is applied in a way that produces a new and useful result.

Alice/Mayo Test for Patent Eligibility

The Alice/Mayo test, established by the Supreme Court, is a pivotal benchmark for determining the patent eligibility of algorithms and other abstract ideas. This test, originating from the landmark decisions in Alice Corp. v. CLS Bank International and Mayo Collaborative Services v. Prometheus Laboratories, Inc., is a two-step analysis. 

The first step of the test examines whether the patent claims pertain to a law of nature, natural phenomenon, or abstract idea. If not, the invention qualifies for a patent. However, if the claims fall into one of these non-patentable categories, the analysis proceeds to its second step: determining if the claims possess an “inventive concept.” This means the patent claims must introduce aspects that change the fundamental nature of the claim, making it a patent-worthy application of the otherwise ineligible idea. In essence, it should represent something “significantly more” than just a patent on the non-patentable idea, such as an innovative technological solution. If the invention doesn’t meet this second criterion, it’s deemed not eligible for patenting. This framework aims to strike a balance, ensuring genuine innovations receive patent protection while preventing monopolies on fundamental concepts.

The Application Process

The patent application process for algorithms begins with comprehensive research. Prior to filing, one must conduct a thorough patent search to ensure that the algorithm or a similar concept hasn’t already been patented. This preliminary search helps in identifying potential challenges and increases the likelihood of patent grant. Proper documentation of the algorithm’s development, including its purpose, functionality, and unique attributes, is also essential to establish its novelty and utility.

Once the groundwork is complete, the inventor can file either a provisional or non-provisional patent application with the USPTO. A provisional application secures a filing date and provides a 12-month window to submit the more detailed non-provisional application. After submission, the USPTO reviews the application, a process that might necessitate revisions or clarifications. This examination phase is critical, as it determines if the algorithm meets all patentability criteria and can be granted patent protection.

Case Studies of Patented Algorithms

Several noteworthy case studies underscore the intricacies of algorithm patents. Google’s PageRank algorithm, for instance, revolutionized the world of online search by ranking web pages based on their relevance and importance, leading to a successful patent and, subsequently, a dominant search engine. Another example is the data encryption algorithms that underpin modern cybersecurity. Their patented designs ensure secure data transmission, illustrating the tangible, real-world applications of complex mathematical formulas. These instances not only highlight the commercial value of patented algorithms but also the pivotal role they play in technological advancements.

Risks and Limitations

Patenting algorithms comes with its own set of risks and limitations. First, the scope of protection is often geographically limited, meaning that a patent granted in one country doesn’t provide rights in another. This can expose innovators to potential infringements in global markets. Secondly, even with a patent in hand, the holder might still face litigation risks, especially if the patent’s validity is challenged by competitors. Lastly, the rapidly evolving nature of technology can sometimes render an algorithm obsolete before its patent protection expires, thus diminishing its commercial value.

Questions About the Patentability of Your Innovative Algorithms?

The question of whether you can patent an algorithm is not a simple one. Since it’s important to ensure that your innovative algorithm receives the protection it deserves and that you’re well-equipped to handle any potential challenges, we recommend consulting with experienced legal professionals who are well-versed in these matters. We encourage you to reach out to Bold Patents for a free discovery call to explore the patentability of your intellectual property.

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