Software may be used to implement a patentable invention, but software in general is typically not considered a patentable invention. So instead of asking whether software is patentable, you should ask "is the idea implemented using software a patentable invention?" There are many example "software ideas" that have been ruled patentable subject matter, such as software that improves the operation of a general purpose computer in an innovative manner (e.g., innovative ways to implement the user interface, user authentication, cyber security, blockchain, etc.)
Whether the claims of a software based patent application are valid under § 101 (Alice) or under § 103 (Obviousness) typically turns on the degree of innovation. The more innovative, the more likely the claims will be found patentable. A skilled patent practitioner should draft the patent application by emphasizing the innovative aspects of each embodiment. The more an idea may seem obvious on its face to any reasonable person, the more emphasis on innovation should be placed in the patent application.
Consider the example of the "Ring Doorbell" which is implemented using software and may seem obvious on its face to many. Can enough innovative aspects be described to overcome a § 101 (Alice) or § 103 (Obviousness) rejection? If the general idea of a Ring Doorbell is not sufficiently innovative, are there improvements to the general idea that may be considered sufficiently innovative?
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Software may be used to implement a patentable invention, but software in general is typically not considered a patentable invention. So instead of asking whether software is patentable, you should ask "is the idea implemented using software a patentable invention?" There are many example "software ideas" that have been ruled patentable subject matter, such as software that improves the operation of a general purpose computer in an innovative manner (e.g., innovative ways to implement the user interface, user authentication, cyber security, blockchain, etc.)
Whether the claims of a software based patent application are valid under § 101 (Alice) or under § 103 (Obviousness) typically turns on the degree of innovation. The more innovative, the more likely the claims will be found patentable. A skilled patent practitioner should draft the patent application by emphasizing the innovative aspects of each embodiment. The more an idea may seem obvious on its face to any reasonable person, the more emphasis on innovation should be placed in the patent application.
Consider the example of the "Ring Doorbell" which is implemented using software and may seem obvious on its face to many. Can enough innovative aspects be described to overcome a § 101 (Alice) or § 103 (Obviousness) rejection? If the general idea of a Ring Doorbell is not sufficiently innovative, are there improvements to the general idea that may be considered sufficiently innovative?
Disclaimer: All viewers agree no professional liability arises from anything posted on this website.
If you found this posting helpful, please donate to the author's bitcoin address:
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