Software plays an essential role in almost every industry today, from healthcare to finance and entertainment. As a result, the need for effective intellectual property (IP) protection has never been greater. Yet, despite significant legal advancements, many people still hold outdated beliefs about the patentability of software. These misconceptions often prevent companies from pursuing patents, leaving their valuable innovations vulnerable. Let’s explore the most common myths about software patents and uncover the truth behind them.
Myth #1: “You Can’t Get a Patent on Software”
The Truth
Contrary to popular belief, software patents are obtainable, provided the invention meets certain criteria. Patent law does not grant protection to abstract ideas, but it does protect specific implementations of software that demonstrate a novel and non-obvious application. The key lies in framing the software as a process or method that provides a tangible technical solution rather than just an abstract concept.
How to Overcome It
To successfully patent software, ensure your application highlights the technical problem your invention solves. Include detailed descriptions and technical claims that go beyond merely stating the algorithm. Demonstrate how your software operates in a specific context or integrates with hardware to produce a useful, concrete result. Engaging a skilled patent attorney who understands software innovation can help craft a compelling application.
Example
A landmark example of software receiving patent protection is the case of Diamond v. Diehr (1981). The inventors created a software-controlled process for curing rubber, showing that their algorithm led to a physical transformation. This example sets a precedent for future software patents by demonstrating that software can be patentable if it leads to a tangible, industrial application.
Myth #2: “Only Hardware Companies Can Patent Software”
The Truth
This myth persists due to the historical association between patents and physical inventions. However, in today’s digital economy, companies of all types—whether they produce physical hardware or purely digital products—can secure software patents. The eligibility for patent protection does not depend on the industry but rather on the nature of the invention and its technical application.
How to Overcome It
Regardless of whether your software integrates with hardware, concentrate on showcasing its innovative features. Clearly outline the technical innovations and how the software solves a specific problem in a new way. Highlight how the software improves system performance, efficiency, or functionality, which can help satisfy patent eligibility requirements.
Example
Adobe Systems, a company primarily known for its software products like Photoshop, holds numerous patents for their unique algorithms and methods for digital image processing. Adobe’s patent portfolio shows that software companies, not just hardware firms, can successfully secure patents when their innovations demonstrate technical advancements.
Myth #3: “Copyright Provides the Same Protection as Patents”
The Truth
Copyright and patents offer different forms of protection. Copyright covers the specific expression of an idea, such as the source code of a software program. It prevents others from copying the exact code but does not protect the underlying methods or processes. In contrast, patents protect the functional aspects of the software, including the algorithms and processes it performs, regardless of the code used.
How to Overcome It
If your software invention includes novel processes or methods, apply for patent protection to cover these functional aspects. Use copyright protection in addition to patents for comprehensive coverage. This dual protection strategy can prevent competitors from using different codes to replicate your unique methods.
Example
Google holds both copyright and patent protection for its search algorithms. While the copyright protects the specific code, patents cover the methods used for indexing and retrieving search results. This approach provides broader protection, preventing competitors from mimicking Google’s search functionality even if they use different codes.
Myth #4: “You Must Submit Your Source Code for a Software Patent”
The Truth
Many believe that obtaining a software patent requires submitting the source code, which could expose proprietary information. However, patent applications require a detailed description of the invention, not the actual source code. The focus is on explaining how the software works and the technical problems it solves.
How to Overcome It
Provide a comprehensive description of the invention’s functionality, including flowcharts, diagrams, and technical specifications. Clearly articulate the problem the software addresses and how it achieves a solution. This approach satisfies the patent office’s requirements without disclosing proprietary code.
Example
Oracle Corporation holds patents for its database software without revealing its source code. By focusing on detailed descriptions of the database methods and processes, Oracle secured patent protection while keeping its code confidential.
Myth #5: “All Software Can Be Patented”
The Truth
Not all software is eligible for patent protection. The software must demonstrate novelty, non-obviousness, and a specific technical application. Unless tied to a concrete technical solution, abstract ideas, algorithms, and basic data organizing methods do not qualify.
How to Overcome It
Before filing a patent application, conduct a thorough analysis of your software’s features. Focus on elements that involve innovative methods, new technical processes, or unique system architecture. Avoid generic claims and emphasize specific technical improvements.
Example
In Alice Corp. v. CLS Bank (2014), the U.S. Supreme Court ruled that software patents must involve an “inventive concept” beyond an abstract idea. The court deemed Alice Corp.’s claims to be abstract, invalidating them. This case highlights the importance of framing software inventions as practical solutions to technical problems.
Myth #6: “Software Patents Take Too Long to Obtain”
The Truth
The patent process can be lengthy, but it is not always prohibitively so. While standard procedures may take several years, there are expedited options available that can significantly reduce the timeline.
How to Overcome It
Use the USPTO’s Track One Prioritized Examination Program or similar fast-track procedures offered in other jurisdictions. By using these options, you can expedite the review process and grant patents in less than a year.
Example
IBM, a major player in software patents, frequently uses expedited examination programs to quickly secure patents for their software innovations. This strategy allows IBM to maintain a competitive edge by swiftly protecting new technologies.
Myth #7: “Software patents are not enforceable.”
The Truth
Software patents are enforceable and have been the subject of many successful litigation cases. When properly drafted, software patents provide robust legal protection against infringement.
How to Overcome It
Ensure that your patent claims are precise and cover all key aspects of the invention. Work with an experienced attorney to draft broad but defensible claims that are difficult for competitors to circumvent.
Example
In VirnetX v. Apple, VirnetX successfully enforced its software patents related to secure communications. The company received significant damages, proving the effectiveness of well-drafted software patents against large corporations.
Myth #8: “My Company Doesn’t Need Software Patents”
The Truth
Many businesses believe that software patents are unnecessary unless they plan to sue for infringement. However, patents offer defensive benefits, preventing competitors from copying or blocking your innovations.
How to Overcome It
Build a patent portfolio as a strategic asset. Even if litigation is not your goal, patents can increase your company’s valuation, attract investors, and provide leverage in negotiations.
Example
Tesla initially adopted an open-patent strategy but later built a strong patent portfolio for defensive purposes. This approach helps Tesla safeguard its software innovations while maintaining strategic flexibility.
Myth #9: “Software Patents Are Obsolete by the Time They Are Granted”
The Truth
While the pace of software development is fast, many foundational technologies have long-term value. Patents for core innovations remain relevant and enforceable well beyond their filing dates.
How to Overcome It
Focus on patenting key innovations that are likely to remain essential in the industry. Use expedited examination processes to align patent protection with the peak value of the invention.
Example
After receiving a patent in 1983, the RSA encryption algorithm maintained its value for decades and established itself as a standard in digital security. This example shows that certain software innovations have lasting impact.
Myth #10: “We can handle patent applications ourselves without an attorney.”
The Truth
Drafting software patents requires specialized knowledge of both technology and patent law. Mistakes in the application process can lead to narrow claims or outright rejections, reducing the value of the patent.
How to Overcome It
Work with experienced patent attorneys who understand software innovations. They can help draft comprehensive applications, anticipate examiner objections, and increase the chances of approval.
Example
Startups like Zoom Video Communications initially struggled with self-drafted patent applications but saw greater success after partnering with experienced IP law firms. This strategic shift allowed them to secure broad protection for their videoconferencing software.
Conclusion
In 2025, understanding and overcoming myths about software patents is crucial for innovators seeking to protect their intellectual property. By dispelling these misconceptions and employing strategic patenting practices, businesses can secure valuable legal protection and gain a competitive edge. It’s time to leave the myths behind and embrace the truth about software patents.
If you’re looking to protect your software innovations and need expert legal guidance, Stevens Law Group is here to be your trusted partner. Our experienced attorneys specialize in navigating the complexities of software patents, helping you secure the IP protection your ideas deserve.
Why Choose Stevens Law Group?
- Deep expertise in software and technology patents.
- Proven strategies to overcome common pitfalls and patent rejections.
- Personalized support throughout the entire patent application process.
Don’t Leave Your Software Unprotected! Get in touch with Stevens Law Group today for a consultation and let us guide you through every step of the patenting process.
You can also watch this video on intellectual property management tailored specifically for in-house counsel. This guide offers essential strategies and insights for managing and protecting your company’s intellectual property and innovations.
FAQs
- What’s the difference between a software patent and a copyright?
- Copyright protects the code, while a patent covers the methods and processes the software performs.
- How long does it usually take to get a software patent approved?
- Standard timelines range from 2–3 years, but expedited processes can reduce them to less than a year.
- Are software patents enforceable internationally?
- Yes, but enforcement depends on the jurisdiction and the scope of the patent rights granted.
- Is it expensive to file for a software patent?
- Costs vary, but many options exist for small businesses, including phased payments and expedited examination.
- Can AI-generated software be patented?
- Yes, but the application must clearly outline the human contribution and the specific technical problem the software addresses.
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