Key Takeaways

  • A computer patent application protects software inventions that offer a technical improvement, not just abstract ideas.
  • To qualify for protection, software must demonstrate novelty, non-obviousness, and a clear link to a computer or hardware process.
  • Applicants should emphasize specific technical improvements or solutions their invention provides over prior art.
  • The USPTO applies the Alice/Mayo test to distinguish patentable computer-implemented inventions from unpatentable abstract ideas.
  • Alternatives such as copyrights, trade secrets, and trademarks may supplement or replace patent protection.
  • Engaging a patent attorney can help navigate complex rules and ensure your application highlights innovation effectively.

Computer patents usually refer to software patents, which protect unique software creations. Although you can patent software, you should find out how necessary it is to patent your creation, because the process can be complicated and costly.

About Software Patents

It's possible to patent software in the U.S. These inventions are usually referred to as computer-implemented processes, but it's the software that's protected.  A person can protect software if it's unique and tied to a machine. “Unique” is defined as being non-obvious and novel, the same patent requirements for inventions in other industries. 

You can't patent something you do in your head, but if the process involves a physical machine, like a computer, you have an object that's eligible for a patent. As long as it's a unique process and described properly when you file for a patent, you should be able to get one.

If you want a patent for software, you should begin with a patent search. It's important to detail what makes your creation unique and to be able to describe it in a way that showcases its uniqueness. You might ask yourself if you want to invest the following when seeking a patent: 

  • Time
  • Money
  • Resources

By the time you've conducted an adequate search to make sure your creation is original and that no other patents exist for it, you may have a detailed report between five and seven single-spaced pages. In this assessment, you should have a complete report outlining all the information you found. You should also have a thorough understanding of the invention and get a handle on your likelihood of obtaining protection.

Understanding Computer Patent Applications

Filing a computer patent application requires more than describing lines of code—it must show how the invention improves the functioning of a computer or solves a technological problem. Under U.S. patent law, software-related inventions are typically treated as computer-implemented processes, and the focus is on their practical application rather than abstract ideas.

The U.S. Patent and Trademark Office (USPTO) uses the Alice Corp. v. CLS Bank decision to determine patent eligibility. This two-step test asks whether the claim is directed to an abstract idea (like a mathematical formula or general method of organizing information), and if so, whether it adds an “inventive concept” that transforms it into a patent-eligible application.

To improve the likelihood of approval, applicants should:

  • Describe the invention as an improvement to computer functionality, not just a process performed by a computer.
  • Identify specific technical problems solved by the invention and explain how the software changes hardware behavior or system efficiency.
  • Provide flowcharts, diagrams, and detailed descriptions of the technical implementation to demonstrate innovation beyond abstract ideas.

An effective computer patent application connects the software’s function to tangible technical results—like increased processing speed, improved data storage methods, or enhanced network security. Including these details helps the USPTO see your invention as a technological advancement, not a conceptual idea.

Tips on Patenting Software

Ask yourself if you really need a patent for your software-related invention. Before rashly filing, think long and hard about this. In many places around the globe, computer programs have copyright protections in place. One of the biggest advantages of copyright protection is its simplicity. This type of protection needs no formalities such as registration, and international copyright protection is automatic — as soon as someone creates a work, it's protected under copyright law. 

Copyright owners hold onto that protection for a long time. It may last as long as the owner lives plus 50 years, and some countries extend the protection to 70 years after death.

By contrast, you must apply for a patent in each country where you want patent protection. These patent applications are formal and substantial. Your patented invention will be made public. Due to the complexity of the requirements, inventors often seek help from legal experts. Patent protection lasts far less time than copyright protection, with a general term lasting 20 years from the date the application was filed. 

With so many restrictions, complexities, and a shorter period of protection, why do people bother to patent software-related inventions? People have various reasons. One of the main reasons has to do with how far copyright protection goes: it only extends to expressions. Copyright protects a computer program's literal expressions, but it offers no protection for the ideas underlying the program, and these ideas can have a substantial commercial value.

Because patent requirements are so complicated, it can be expensive to get and enforce patents. If you don't have a wealth of resources at your disposal, take the time to consider if it's worth going through the trouble to a patent a software-related invention. Ask yourself if that's really the best way to protect it. Instead, you may want to look into other possibilities to protect your creation, such as the following:

  • Trademarks
  • Trade secret protection
  • Industrial designs

Another point to consider is what you actually want to protect from competitors. Identify your creation's core part. Although software may be used in a computer or other object, software is often designed and distributed separately from the hardware. The core part of your invention may lie in a system, a method, or the processing of data.

If you choose to file a software patent, conduct sufficient research to make sure going through the process is worth the time and effort it will take. You may find other options that are less costly and complicated that give you sufficient protection for your creation.

Steps in Filing a Computer Patent Application

When preparing a computer patent application, it’s important to follow a structured approach to ensure compliance with USPTO standards and to increase approval chances:

  1. Conduct a Patent Search
    Start by researching existing patents and published applications to confirm that your invention is novel. The USPTO’s online database and international tools like WIPO’s PATENTSCOPE can help identify prior art.
  2. Draft a Detailed Specification
    Describe your invention comprehensively, including its technical field, background, and summary of the invention. Provide system diagrams, pseudocode, or algorithms where appropriate, ensuring clarity and completeness.
  3. Include Patent Claims
    Claims define the scope of legal protection. For computer-related inventions, balance between broad and specific claims—broad enough to protect your innovation, but specific enough to withstand examination.
  4. Demonstrate Technical Improvement
    The patent application should clearly explain how the software improves computer operation, such as optimizing data processing or enabling new computing capabilities.
  5. File with the USPTO
    Submit your patent application electronically through the USPTO’s EFS-Web or Patent Center. You may choose a provisional patent application to establish an early filing date before submitting a full non-provisional application.
  6. Respond to Office Actions
    The USPTO may request clarifications or reject certain claims. Work with a patent attorney to refine language or provide technical evidence supporting the invention’s novelty and inventive step.

Alternatives and Complementary Protections

Not all software innovations are best protected by patents. Depending on your goals, other intellectual property protections might be more effective:

  • Copyrights protect the code’s literal expression, including written source and object code.
  • Trade Secrets safeguard confidential algorithms, formulas, or processes that are not publicly disclosed.
  • Trademarks can protect the name, logo, or brand identity associated with your software product.

Combining these protections can provide layered security. For instance, while your computer patent application covers the underlying process, copyright safeguards the code itself, and trademarks protect how it’s marketed.

Common Challenges in Software and Computer Patents

Applicants often face hurdles unique to computer patent applications, including:

  • Abstract Idea Rejections: The USPTO may argue that the software is a mental process or business method.
  • Demonstrating Inventive Concept: Applicants must show how their invention improves technology, not merely automates existing tasks.
  • Rapid Technological Change: Software evolves quickly, and patenting can take years. Applicants should ensure the invention remains commercially relevant by the time of approval.
  • Cost and Enforcement: Obtaining and enforcing software patents can be expensive, especially if litigation arises.

To overcome these challenges, clearly articulate how your invention provides a technical benefit and ensure your application demonstrates real-world improvements in computing performance.

Frequently Asked Questions

1. What qualifies as a computer-implemented invention?

A computer-implemented invention includes software or algorithms that perform functions through a computer system, producing a concrete technical result.

2. How long does it take to get a computer patent?

It typically takes between 18 to 36 months for the USPTO to examine and issue a patent, depending on backlog and complexity.

3. Can I patent AI or machine learning software?

Yes, but you must show how the AI model or process provides a specific technological improvement, such as optimizing data processing or enabling new decision-making capabilities.

4. Do I need to submit my source code with a patent application?

No. While you don’t need to provide actual source code, you should include enough detail (e.g., algorithms, flowcharts) to explain how the invention works.

5. Should startups file a provisional patent application first?

Yes, a provisional application allows startups to secure an early filing date while refining the invention or seeking funding before filing a complete application.

If you need help with computer patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.