Patents for Software
Many established industries are being modernised by the introduction of cloud-based management, crowdsourced services, or networking systems to deliver existing products or services more efficiently or by altogether new software as a service (SaAS) products. Continuous innovation also occurs in the development of new software applications for smartphones and tablets, as well as in the server processes that often drive their functionality. Software patents constitute a large proportion of the patent applications filed in Australia and around the world.
Is software patentable?
Software patent applications that define a new method or process for solving a particular real-world problem in a way that would not be obvious to a developer familiar with the industry is likely to be patentable in Australia. On the other hand, software which simply automates a task that could be performed by hand (however inefficiently) is unlikely to be patentable. That is, if you remove the elements of a computer device from the claim, and all that is left is a known method, then the use of the computer or software will not be sufficient to make the claim patentable.
If you are unsure whether your software can be patented, you should consult an Australian patent attorney. Where a software process provides a new, non-obvious and useful method for performing a given task, software patent applications are still patentable subject matter in many jurisdictions, provided that the software patent application is tailored to the specific requirements of the jurisdiction where patent protection is being sought.
Benefits and challenges of patenting software
Software patents can be highly effective at stopping or delaying competition. They also give companies a clear competitive edge in raising capital. Patentability of software requires that it is significantly more than an abstract concept; patentable software has to feature an innovation that should not be obvious to developers familiar with the technical field of the software. Abstract ideas, such as mathematical functions and algorithms, are not patentable, but an inventor can patent a system that utilises the algorithm to produce a novel industrial result.
Sometimes, eligibility issues in filing a software patent application can be readily overcome by using the correct language in the claims of the patent application. Thus, your software patent should be prepared by a patent attorney who is knowledgeable about software patents and meticulous in preparing the details of your application.
Examples of granted software, mobile apps and computer patent applications
Ansalone, Alexander Anthony MR
|Mobile (smartphone and/or tablet apps)|
Darling, Liam MR
Western Digital Technologies, Inc
|Server and client systems|
Hargreaves, Carol Anne DR
Accenture Global Solutions Limited
Lutze, An drew John MR
Accenture Global Services Limited
The Baxter IP approach to filing software, apps and computer patents
- File software patents early and file often – this space moves very quickly, and in some cases, the difference of a single day in priority date can determine the patentability of your patent application.
- Focus on core concepts, modules and functional steps rather than on the code for broader software patent protection.
- Coverage of different platform implementations (e.g. distributed architecture, cloud-based client/server architecture or stand-alone mobile application executed by a physical mobile device)
- Australian patent protection can also be increased by filing divisional innovation patent applications – these patent applications proceed to grant quickly and are difficult to invalidate.
Depending on specific circumstances, however, other strategies may be more appropriate. It is important to discuss your particular situation with a qualified attorney to determine the best strategy in each case.
Examples of software, apps and computer patent applications filed through Baxter IP
- AU Patent #2019901394 – Electronic identity verification, sign in and management system, and method therefor. Wirawan, Rudolf
- AU Patent #2018282481 – An online system for employment of temporary employees. Slog Pty Ltd
- AU Patent #2018247212 – Methods and systems for Honeyfile Creation, Deployment and Management. Pen10 Services Pty Ltd
- AU Patent #2018202382 – Methods and systems for resolving user interface features, and related applications. Basyrov, Marat
- AU Patent #2018101720 – A computer implemented method for preventing unauthorized access to a secured network. Mogrelia, Mehrzaad
Our software, apps and computer industry experts
Baxter IP, Patent and Trade Mark Attorneys has been awarded for the last few years with several industry awards, particularly in the field of software patents.
Chris Baxter, the managing director of Baxter IP, Patent and Trade Mark Attorneys, is a leading attorney in ICT and blockchain patents. Chris counts among IAM Patent 1000 recommended professionals in this field.
Martin Earley, the Victoria regional director, is another powerhouse in the ICT field, with a particular inclination toward using patent law to the commercial advantage of the innovator. Notably, Martin started his career in IP Australia as an examiner, which means he has extensive knowledge in what the office is looking for in submitted applications.