Key Takeaways

  • An algorithm patent protects a specific, practical application of a mathematical process, not the abstract algorithm itself.
  • To qualify for patent protection, an algorithm must produce a technical improvement or a concrete result, not just perform calculations.
  • The U.S. Patent and Trademark Office (USPTO) applies the Alice/Mayo test to determine patent eligibility for software-related inventions.
  • Patent applicants must demonstrate novelty, non-obviousness, and industrial applicability.
  • Algorithm patentability varies internationally—jurisdictions like the EU and Japan apply different criteria for computer-implemented inventions.
  • Drafting a strong algorithm patent requires emphasizing the technical problem solved and practical application rather than abstract ideas.

Algorithm patents are patents for math that describe a particular process and purpose. This means that the patented algorithm can't just cover all particular uses of an algorithm, but rather must cover a single particular algorithm. One common test is to turn the algorithm into a single electronic circuit, which must differentiate itself from other circuits. Since these kinds of algorithms make our computerized society function, these patents are a necessary part of maintaining that society.

At the same time, the various mechanics of protecting intellectual property have led to an extensive debate on all levels of society, from the local to the global. Examples like the European Union's attempted draft of a Directive on the Patentability of Computer-Implemented Inventions demonstrates how views among member nations can vary wildly. This is complicated by the very nature of information technology, as the internet makes processes globally accessible while patent protections remain rooted in individual nations.

Over time, algorithm patents are becoming more and more common, with applications increasing eight times in four years from 2011 to 2015. With no sign of slowing, it is likely that algorithm applications will become one of the biggest patent categories in the next few years. This in turn will probably continue creating a backlog of patent applications in the field, making it more difficult for late entrants every day.

Patent Code Classifications

Most of the top computer companies are now actively involved in algorithm patenting. IBM is a leader in raw patent numbers, but Samsung and Qualcomm are serious contenders as well. Chinese companies are establishing a strong presence in the patent field, with many companies and schools in the top 40 applicants.

As far as what kinds of things the algorithms cover, top patent code classifications (CPC codes) include:

  • Learning machines, also known as artificial intelligence
  • Edge detection and segmentation
  • Medical diagnosis device software
  • Image inspectors for biomedical devices
  • Networking components

Many of these items relate to the emergence of the so-called Internet of Things, where interconnected smart devices increasingly dominate previously stable appliance markets. Clearly there is a race between domestic companies and Chinese firms to control the underpinnings of the software for this radical new concept.

Patent Eligibility for Algorithms

Algorithms, in their pure mathematical form, are not patentable because they are considered abstract ideas. However, when an algorithm is tied to a specific technological application that solves a real-world problem—such as improving image recognition, optimizing data processing, or enhancing cybersecurity—it may qualify for patent protection.

The U.S. Supreme Court’s Alice v. CLS Bank (2014) decision clarified that for an algorithm to be patent-eligible, it must:

  1. Be applied in a “practical application” beyond a mere abstract concept.
  2. Provide a technical improvement or solution to a specific problem in technology.

The USPTO’s Alice/Mayo test applies a two-step analysis:

  • Step 1: Determine if the claim is directed toward an abstract idea, law of nature, or mathematical concept.
  • Step 2: If so, assess whether the claim adds an inventive concept that transforms it into a patent-eligible application.

For example, an algorithm used for machine learning model optimization could be patentable if it enhances computer performance or data accuracy, while a generic mathematical formula or financial computation likely would not.

Copyright vs. Patent

At this point in history, most countries recognize computer programs as copyrightable objects. This simplifies international copyright enforcement, as everyone is playing from the same handbook. Since copyright generally extends protection much longer than a patent, the use of copyrights preserves the inventor's control in ways that patents cannot. But patents also offer certain protections absent in an expression-based copyright, such as the defense of methods and ideas, and therefore remain in use.

Without the united body of law attendant to copyright, patents have to be applied for on a country by country basis. Legal requirements vary greatly but usually include a fee of some sort, substantial information sent to the patent authority, and public disclosure of the invention. The complexities of international patent law almost always require the retaining of a lawyer, making it an expensive process. Though it may seem like a lot of trouble, the patent will protect the ideas behind the algorithm, whereas a copyright only protects the algorithm itself.

A patentable invention meets five significant criteria:

  • The patented invention must be constructed of patentable items and subjects.
  • The inventions have to be usable in an industrial or another useful context.
  • The invention must be original.
  • The invention has to be inventive, or not obvious.
  • The patent paperwork must meet the requirements of the patent office.

In terms of software and algorithms, the requirements to be non-obvious and a patentable subject matter are the most important. Since the definition of invention varies from nation to nation, whether an algorithm is patentable at all is often a source of contention. Emphasizing the technical aspects of the invention will help here. As far as the non-obviousness requirement, the idea is usually to produce inventions that contribute something new.

Of course, the true test of any legal instrument is the courtroom, and current cases over algorithm patents and copyrights will end up shaping the protections environment going forward. As these cases resolve, new legal requirements will inevitably emerge.

Steps to Patent an Algorithm

Applying for an algorithm patent follows the standard process for software inventions but requires particular attention to how the algorithm is implemented and what technical benefits it provides.

1. Conduct a Prior Art SearchBefore filing, conduct a comprehensive patent search to identify similar existing patents. This step ensures that your invention is novel and not already covered by prior art.

2. Draft a Detailed Patent ApplicationThe application should include:

  • Title and Abstract: Summarize the algorithm’s technical field and purpose.
  • Specification: Describe the problem solved, how the algorithm works, and its industrial application.
  • Claims: Clearly define the boundaries of protection. Avoid overly broad claims to reduce rejection risk.

3. Emphasize Technical BenefitsFocus on how your algorithm improves computer functionality, reduces processing time, or enhances accuracy. The USPTO favors inventions with demonstrable technical effects rather than theoretical outcomes.

4. File with the USPTOSubmit your application online through the Patent Center. You may first file a provisional patent to secure a filing date while you refine your invention.

5. Respond to Office ActionsIf the USPTO examiner raises objections, provide technical clarifications or amend your claims to demonstrate inventive application.

Common Challenges in Algorithm Patent Applications

Patenting algorithms involves several challenges, including:

  • Abstract Idea Rejections: Many applications are denied for being too theoretical or lacking a practical embodiment.
  • Rapidly Evolving Technology: Algorithms evolve quickly, and competitors may create similar methods that fall outside the claim’s scope.
  • International Variations:
    • The European Patent Office (EPO) allows patents for “computer-implemented inventions” that provide a technical contribution.
    • In China and Japan, algorithm-related patents are acceptable if they solve a technical problem using a computer.
  • Disclosure Risks: Publicly disclosing your algorithm before filing can forfeit patent rights in some jurisdictions.

Engaging a software patent attorney helps navigate these complexities and maximize your application’s success rate.

Examples of Patentable Algorithms

Below are examples of algorithm applications that have successfully been patented:

  • Image and Voice Recognition Systems: Algorithms that enable accurate real-time recognition through neural networks.
  • Data Compression and Encryption Methods: Processes that improve efficiency or enhance security during data transmission.
  • Medical Diagnostics: Algorithms used for detecting anomalies in imaging or predicting disease progression.
  • Autonomous Vehicles: Path-planning and decision-making algorithms that improve safety and responsiveness.
  • Blockchain and FinTech Applications: Methods for secure transaction validation or distributed ledger optimization.

Each of these examples shares one common factor: they produce a tangible, technical improvement, not just a mathematical calculation.

How to Strengthen an Algorithm Patent Application

When drafting your algorithm patent:

  • Use flowcharts and diagrams to illustrate the process.
  • Describe the hardware integration or technical framework that supports the algorithm.
  • Highlight any performance metrics that show measurable improvements.
  • Avoid vague language such as “optimized,” “improved,” or “faster” without providing quantitative results.

Providing experimental data or benchmark comparisons can also help establish the inventive step and non-obviousness required for patentability.

Frequently Asked Questions

  1. Can you patent a pure mathematical formula?
    No. Mathematical formulas and abstract ideas are not patentable unless applied in a concrete, technological way.
  2. How long does an algorithm patent last?
    A U.S. utility patent generally lasts 20 years from the filing date, provided maintenance fees are paid.
  3. Can an AI-generated algorithm be patented?
    Currently, only human inventors can be listed on patent applications in the U.S. AI-generated inventions are not independently patentable.
  4. What’s the difference between a software patent and an algorithm patent?
    Software patents protect the entire computer program, while algorithm patents focus on the specific process or method that drives the software’s functionality.
  5. Should I file a provisional patent for my algorithm?
    Yes, a provisional patent application is an excellent first step. It establishes an early filing date while allowing 12 months to file a full (non-provisional) application.

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