What's patentable about software?

What is a software patent?

A software patent is a patent directed to a software program or an algorithm implemented in or using a computer.

When do you need a software patent?

If your product or service involves software, consider exploring the possibility of filing for a software patent. While copyright can protect your actual code from being copied, copyrights cannot prevent others from independently developing the same software (that is, without copying it). By contrast, a patent can allow you to exclude others from practicing the functional aspects of the software claimed in your patent, even if the other party independently developed it.

The federal government grants patents on new, useful, and non-obvious inventions. While features and functions of your software may be new and non-obvious, the biggest hurdle to obtaining patent protection may be overcoming the useful requirement – that is, whether your new and non-obvious software is eligible for a patent.

You may hear people say that software is not patentable. While the legal landscape related to software patents has changed dramatically over the past few years – and it is significantly more difficult to obtain a software patent now than it was a few years ago – it is still possible. Moreover, recent developments suggest a potential shift toward allowing broader patent protection for certain software innovations.

What types of software are patentable?

Generally, the more technical your software innovation is, the more likely it is to be patentable. For example, if your software uses a general-purpose computer to perform tasks that a person could do with a pen and paper, the software is likely not patentable. However, if your software produces a technical effect or technical improvement over existing computer systems – for example, by creating new structures in memory, introducing a new type of database structure, or improving overall computer functionality and performance – it may be patentable. Recent guidance from the United States Patent and Trademark Office (USPTO) has shed additional light on how these principles apply to artificial intelligence (AI).

While the current framework remains in effect, the USPTO has clarified that claims that “encompass AI in a way that cannot be practically performed in the human mind do not fall within [the mental process grouping of abstract ideas].”[1]  If an examiner nevertheless determines that the claims recite an abstract idea, the USPTO has instructed examiners to “not dismiss additional elements as mere ‘generic computer components’ without considering whether such elements confer a technological improvement to a technical problem, especially to computer components or the computer system.”[2]  If your software includes such a technological improvement, it may be patentable.

How do I figure out if my software is patentable?

In order to determine if your software is eligible for patent protection, consider speaking with a patent attorney who has experience in drafting and obtaining patents related to software. Before you meet with an attorney, it may be helpful to meet with your coders and/or engineers to determine which features in your software 1) are the most important from a business perspective and 2) were the most difficult to successfully implement. Identifying those features and discussing them with an attorney can help guide decision-making on whether the features amount to a sufficient technical improvement to warrant filing a patent application.

What are alternatives to a software patent?

Software can be protected with copyright and trade secret law. As noted above, copyright will protect you from someone copying your actual code. However, you will not be protected if that person independently develops their own code that performs similar functions. More details on copyright protection can be found in our corresponding blog post on copyrights. Trade secrets can protect the structure and methodology of your software but will require you to implement confidentiality procedures to keep the material secret. Once the information you are attempting to protect with a trade secret becomes public, it will no longer be protected by trade secret law.

What next?

Once you decide to proceed with filing a patent application, consider working with a patent attorney to prepare the application for filing.
What do I do if I have a question?

If you would like to discuss software patent strategy for your company, please contact Larissa S. Bifano in our Boston office or any member of our Patent Litigation practice firmwide.

 

^{[1]  See Reminders on Evaluating Subject Matter Eligibility of Claims Under 35 U.S.C. 101, USPTO, 3 (Aug.4, 2025), https://www.uspto.gov/sites/default/files/documents/memo-101-20250804.pdf.
[2]  Advance Notice of Change to the MPEP in Light of Ex Parte Desjardins, USPTO, 4 (Dec. 5, 2025), https://www.uspto.gov/sites/default/files/documents/memo-desjardins.pdf.}