Can a written description of sofware or an application idea be patented? 8 Answers as of July 26, 2011

Can a written description of a software idea or iPhone application qualify for patent or trademark protection in the US? What is the best path forward?

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Kafantaris Law Group
Kafantaris Law Group | Theo Kafantaris
Software, including iPhone and Android applications, can be patented in the US. These applications are generally more complex than others, so you should seek an attorney who specializes in software patents. I specialize in software, so feel free to contact me if you would like to proceed.
Answer Applies to: California
Replied: 7/26/2011
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
In general computer software is patentable in the U.S. as long as they perform a specific task and achieve something useful. On the other hand, a computer software that is simply a number cruncher without doing more is not patentable. Therefore, an iPhone application which performs something useful, and almost anything that is performed qualifies as useful, is patentable.
Answer Applies to: California
Replied: 1/19/2011
Malhotra Law Firm, PLLC
Malhotra Law Firm, PLLC | Deepak Malhotra
Absolutely. Patents provide the strongest protection by far but you should also look at trademark registrations and copyright registrations. Design patents may also be available. A combination of forms of intellectual property is usually the best approach. I have examples of software patents on my website.
Answer Applies to: Washington
Replied: 1/19/2011
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
Yes- best path would be a utility patent.
Answer Applies to: Oregon
Replied: 1/19/2011
Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
One can patent software, but only if what is being patenting is new (novel) and non-obvious. Many web sites are merely "databases connected to the internet" and should instead be protected under copyright law rather than patent law. Note that copyright only protects against copying, derivating, etc of someone else's expression of an idea, but not use of the underling idea. Thus, if you create a computer program, and someone else creates a very similar computer program without copying or derivating your code, then there is no copyright infringement.

Ideas can also be patented, and indeed that is what patents are supposed to be protecting. Patenting embodiments of ideas, rather than the underlying ideas, is a bad way to go because then a competitor can circumvent the patent claims by using a different embodiment.

In either case a decent provisional would likely run about $3500, with a full blown utility running about $9K - $10K. Sometimes we do a very quick provisional for $1500 or so, but the disclosure for such an inexpensive application would be very weak, and should only be used as an interim placeholder.
Answer Applies to: California
Replied: 1/19/2011
    Devon & Associates
    Devon & Associates | Marcia A. Devon
    Software may be protected by a copyright and/or a patent. However, it sounds as if you do not have your software completed yet (you mentioned a written description). If the software has not been completed yet (if, for example, you have only a flow chart) you cannot file a copyright application until it is. You may be able to obtain a patent, but I recommend that you complete the software first because inventors often find they need to make some changes from their original concept in order to successfully implement it. A trademark application would be appropriate if you had a name for the product you wished to protect.
    Answer Applies to: California
    Replied: 1/19/2011
    DANIEL NESBITT | Hasse & Nesbitt
    A trademark is typically the software name (e.g., "Quicken"), or other identifiers of the source of the product. A utility patent application requires a written description of the invention, and its manufacture and use. Methods employing an electronic communication device may be patentable, but must meet all the requirements of patentability, including novelty, non-obviousness, utility, and a sufficient written description of the invention and it making and use. Software can also be protected under copyright. Document your invention or idea, and contact a patent attorney.
    Answer Applies to: Ohio
    Replied: 1/19/2011
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