If you invent something that is novel, nonobvious, and useful, you can ask the US Patent & Trademark Office to grant you a patent so that you are the only person who can make the invention for a period of time. So, if you create a new software application that nobody has made before, can you get a patent? Not necessarily. Software applications fall under a special category of inventions that the US Patent Office looks at more closely when deciding whether it deserves a patent. A software application can be patented, but it needs “significantly more”.
Computers Doing Human Tasks are Not Patentable
Patent law says that an inventor deserves a patent if the invention is novel, nonobvious, and useful. If you invent a time machine, you certainly deserve a patent. Nobody has ever traveled through time, it’s not easy to think of how to make a time machine, and it’s certainly useful.
Now, what about if you take an existing idea and have that idea performed by a computer? Do you deserve a patent? For example, instead of playing blackjack with a physical deck of cards, you make an app so players can play blackjack on a computer or smartphone. Or, instead of going around and asking restaurant customers how their meal was, a computer emails customers asking for a restaurant review, then a website displays all the restaurant’s reviews and averages the ratings. Or, instead of going to a lawyer’s office to sign papers to sell your house, a computer emails you papers to electronically sign and then the computer automatically takes the buyer’s money and sends it to your bank account? Do these computer apps deserve a patent if nobody has already made such an app?
The U.S. Supreme Court has said that for a software application to receive a patent, it must be “significantly more” than taking an existing idea and applying it to a computer. The game of blackjack is not a new idea, collecting reviews from restaurant customers is not a new idea, and going to a lawyer’s office to sell your house and collecting a check is not a new idea. However, it might be new to have these ideas performed by a computer where they were previously performed by a human. To do this, someone must create a computer program. The computer program must check that the house seller has signed the right documents and must check that the house buyer has sent the money needed to buy the house. This isn’t easy. A lot of programming must go into making sure the software does all the steps that normally a human would do. If you are the first person to make an app to allow houses to be bought and sold all without needing to go to a lawyer’s office, that app is certainly novel, and it’s arguably nonobvious to have an app perform a real estate settlement whereas for all of history it was done by humans.
However, the Supreme Court has said, wait a second, buyers and sellers have been buying and selling houses for a long time and the idea of a real estate settlement has been around for a long time. The seller must sign papers to transfer ownership to the buyer and the buyer must pay the seller for the house. This is traditionally done with a middleman such as with a lawyer at an office. This idea isn’t new, you are simply having a computer do what a human has traditionally done, and we don’t think you should get a patent on this idea simply because it’s now done by a computer.
Significantly More
For a software application to deserve a patent, the Supreme Court has said the software must do “significantly more” than what an existing idea already did. This is from the landmark case Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 218 (2014). Significantly more means you’ve added something to an existing idea other than simply having a computer perform the idea. Simply taking an existing idea and having a computer do it is not enough, we need more. For computerized blackjack, this might be a blackjack machine that has cameras to recognize the hand gestures of the player so it knows whether the player wishes to take another card or fold their hand. It may be a machine that shuffles physical playing cards and deals them so that players can play blackjack with real cards but without a human dealer. For collecting restaurant reviews, this might be a camera on the dining table that allows the customer to record a video review of the food and other customers can watch past customers’ reviews right at the table. For buying and selling a house, this might be if a customer can walk into a store, take a virtual tour of a house using virtual reality, use a computer to transfer money to the seller, and then a machine prints a key to the house and gives it to the buyer. An automated home buying store. These concepts are what would likely be considered as adding “significantly more” to an existing idea to deserve a patent.
Conclusion
To determine whether a software application is eligible for a patent, think about whether you have added “significantly more” than just having a computer do things that have previously been done. Are you simply taking an existing idea and having a computer doing it? That’s not enough. Is there something more that is being done to improve that idea beyond what has already been done? Are you adding features to the idea? Only then will you have a chance of convincing the patent office that you aren’t just taking an existing idea and having a computer do it, you’re doing more than that, and that more you are doing deserves a patent.
Whether your computer application has “significantly more” is a subjective determination, meaning, some may think what you have done is significantly more whereas others may not. It’s open to debate, which is why applying for a patent is a legal process involving patent attorneys and patent agents. As an inventor, you’ll need to argue to the patent office that your app has that “significantly more”, and the patent office is likely to come back and argue that your app lacks that “significantly more”. Be prepared for push back from the patent office which will require you to argue back with the help of your patent attorney or patent agent. Before applying for a patent application for an app, have it reviewed by a patent attorney or patent agent who can give you an idea of the chances for patent approval and how you may be able to increase those chances.
