Can you patent computer code? It’s the critical question every software founder should ask before this scenario unfolds: You’ve just built a revolutionary algorithm that processes data 50% faster than anything on the market. Your startup is gaining traction, investors are interested, and then you discover a competitor has launched something eerily similar. Without patent protection, you’re watching your competitive advantage evaporate in real-time, along with months of development work and potential millions in revenue.
This scenario plays out daily in the software industry. While your code is automatically protected by copyright the moment you write it, that only prevents direct copying, not independent development of the same functionality. The real question isn’t whether you can protect your code, but whether you can protect the innovative concepts behind it. Software patents constituted 61% of U.S. utility grants in 2024 and 30% of litigation cases in 2023, with historical licensing revenues from major companies like IBM reaching multi-billion-dollar levels. With that being said, it is essential to understand what you can and can’t patent. It may be the difference between building a defensible business, or watching competitors freely implement your innovations.
This guide will help you better understand software patentability, from the critical legal tests your invention must pass to the strategic decisions that could determine your startup’s success. You’ll see exactly what aspects of software qualify for patent protection, get up to date on the post-Alice legal framework that has reshaped the industry, and learn actionable steps to protect your most valuable innovations.
Key Takeaways
- Computer code itself can’t be patented, but software-related inventions can be if they produce a technical effect and meet specific patent criteria
- Not all software qualifies for patent protection; only software with novel and non-obvious features may be eligible.
- The patent eligibility of software depends on novelty, non-obviousness, and practical utility, requiring thorough documentation and proof of real-world applications
- Patenting software can be beneficial for protecting innovations and generating revenue, but the process is costly and challenging due to rapid technological changes
Introduction to Patent Law
To understand software patents, one must begin with a solid understanding of patent law and the patent system. Patent law is a specialized area of intellectual property protection that grants inventors exclusive rights to their inventions for a limited period—typically 20 years from the filing date of the patent application. This legal framework is designed to incentivize innovation by allowing inventors to benefit commercially from their creations, including software-related inventions.
In the United States, the United States Patent and Trademark Office (USPTO) is the primary authority responsible for examining patent applications and granting patents for software inventions. The patent and trademark office reviews each application to ensure it meets the strict requirements of patent law, including novelty, non-obviousness, and eligible subject matter. The patent application process can be complex, often involving several stages such as filing a provisional patent application to secure an early filing date, conducting a comprehensive patent search to identify related inventions, and responding to office actions or rejections from the patent office.
For software developers, understanding the nuances of the patent process is crucial. A skilled patent attorney can be an invaluable partner, guiding you through the intricacies of preparing and submitting a strong patent application, addressing feedback from the patent office, and ensuring your software inventions receive the intellectual property protection they deserve. By leveraging the patent system effectively, software developers can secure exclusive rights to their innovations, strengthen their market position, and protect their intellectual property from competitors.
Can You Patent Computer Code?
Computer code, the lifeblood of software applications, is written by programmers to instruct a computer system on performing tasks. However, the code itself isn’t patentable. Software code cannot be patented; only the inventive concepts or methods implemented by the code may be eligible for patent protection. The good news is that software-related inventions can be patented under certain conditions, providing a robust form of intellectual property protection for computer software.
This stems from the landmark case of Alice Corp. vs. CLS Bank International, which clarified that merely implementing an abstract idea on a computer isn’t enough for patent eligibility. This case highlighted the gray area within the patent system, originally designed for tangible inventions, leading to ongoing confusion about abstract ideas and software patentability.
The aftermath of Alice initially created uncertainty, but recent developments provide more clarity. The United States Patent and Trademark Office (USPTO) issued revised examination guidelines in 2019 to bring more clarity. Those guidelines helped reduce the rate of software patent applications rejected as ineligible under Alice by about 25%, and uncertainty in eligibility decisions dropped 44% year-over-year.
Is a Computer Program Patentable?
Determining the patentability of a computer program hinges on specific criteria. In the United States, not all computer programs qualify for patents. The key lies in whether the software does more than execute an abstract idea or mathematical calculation. To be patentable, a computer program must offer a novel solution to a technical problem, clearly demonstrating its originality and distinctiveness. It must produce a “technical effect” or enhance the computer’s functioning to be eligible for a patent.
The Alice Test: A Critical Framework for Software Patent Eligibility
The Alice Test, established by the Supreme Court, provides a two-step framework that determines whether your software innovation qualifies for patent protection. Understanding this framework is essential, as it’s the primary hurdle that separates successful patent applications from costly rejections.
Step 1: Abstract Ideas Analysis The USPTO examines whether your claims are directed to one of three categories of abstract ideas:
- Mathematical Concepts – Including mathematical relationships, formulas, equations, and calculations. Many AI technologies fall into this category due to their algorithmic nature, but experienced attorneys can argue that claims don’t include mathematical concepts when they’re based on mathematical principles without explicitly stating formulas in the claim language.
- Methods of Organizing Human Activity – Common in AI-driven financial systems, business methods, or workflow optimization that automate traditional business processes.
- Mental Processes – Concepts that could theoretically be performed in the human mind, such as observations, evaluations, and judgments. Crucially, claims don’t include mental processes when they contain limitations that can’t practically be performed by humans—such as processing massive datasets or performing complex calculations beyond human cognitive ability.
Step 2: Inventive Concept Evaluation If Step 1 identifies an abstract idea, the analysis moves to whether your claim includes an “inventive concept” that transforms the abstract idea into a patent-eligible application. This requires demonstrating:
- Specific Technical Improvements – Your software must show concrete advances in how computers operate or developments applied to other technological fields
- Non-Conventional Implementation – Generic computer implementations and routine activities aren’t sufficient; your patent specification must clearly outline both a distinct technical challenge and its solution
- Significant Post-Solution Activity – Claims featuring only routine data gathering, basic computation, or standard procedures will likely fail the Alice test
Critical Timing Consideration Public disclosure of your software invention before filing can jeopardize patent eligibility, as inventions publicly disclosed for over a year are generally not eligible for patent protection.
Examples of Patentable vs. Non-Patentable Software
To strengthen a software patent application, it’s important to compare your invention to existing solutions and technologies, highlighting how your software offers improvements or addresses limitations not solved by current options.
Patentable software examples include:
- Programs that control manufacturing processes more efficiently than existing solutions
- Software that improves hardware performance beyond existing technologies
- Innovative data encryption methods that address limitations of current solutions
- Image processing software that produces clearer images than prior techniques or existing technologies
Non-patentable software typically includes:
- Generic business methods that do not improve upon existing solutions
- Software that automates routine tasks without offering advancements over existing technologies
- Generic software performing business methods (like executing routine financial transactions or organizational tasks) often fails unless a technical improvement over existing solutions is demonstrated
Patents vs. Copyrights: Why Patents Provide Superior IP Protection
When it comes to protecting your software innovations, the choice between patents and copyrights can make or break your competitive advantage. While both forms of intellectual property protection have their place, patents offer significantly stronger and more comprehensive protection for businesses serious about safeguarding their technological investments.
Software Patents: Maximum Protection for Your Innovation
Patents provide robust, exclusive protection that covers:
- The underlying functionality, methods, and processes of your software invention
- Exclusive rights to prevent competitors from making, using, or selling software that implements your patented method—regardless of how they code it
- Protection against independent development of the same functionality
- Strong legal standing with rigorous USPTO examination ensuring validity
- 20 years of market exclusivity from filing date
The key advantage of patents is their ability to protect the idea itself, not just how you express it. This means competitors cannot simply rewrite your code to circumvent your protection—if they implement your patented method, they’re infringing, period.
Software Copyrights: Limited Protection with Critical Gaps
While copyrights are automatic and cost-effective, they offer only surface-level protection that leaves your core innovations vulnerable:
Copyright Limitations:
- Protects only literal expression—the actual source code and object code—not the valuable underlying functionality
- Cannot prevent independent development—competitors can legally create identical functionality as long as they don’t copy your exact code
- No protection for abstract ideas or algorithms—the most valuable aspects of software innovation remain unprotected
- Easy to circumvent—simple code rewrites can eliminate infringement while preserving all competitive advantages
- Minimal deterrent effect—competitors know they can achieve the same results through reverse engineering and independent coding
The Strategic Disadvantage of Copyright-Only Protection
Relying solely on copyright protection means you’re essentially giving competitors a roadmap to your innovation. They can study your software’s functionality, understand your methods, and implement identical solutions without legal consequence—as long as they write their own code.
This approach leaves businesses vulnerable to:
- Feature cloning by competitors who reverse-engineer functionality
- Loss of first-mover advantage when competitors rapidly deploy similar solutions
- Weakened market position due to inability to exclude competitors from your innovation space
- Reduced licensing opportunities since functionality cannot be exclusively controlled
Why Patents Are the Strategic Choice
For businesses that have invested significantly in software development, patents provide the comprehensive protection necessary to:
- Secure market exclusivity for genuine innovations
- Block competitors from implementing your methods, regardless of their coding approach
- Generate licensing revenue from your protected innovations
- Build a defensible patent portfolio that strengthens your market position
- Attract investors who value strong IP protection
While copyrights serve a purpose in protecting creative expression, they fall short of providing the strategic protection that software innovations require. Patents offer the comprehensive, exclusive protection necessary to truly secure your competitive advantage and maximize the return on your development investments.
For software companies serious about protecting their innovations, patents aren’t just an option—they’re a necessity.
Real-World Application: APIs and Fair Use
One notable area where patents and copyrights intersect is Application Programming Interfaces (APIs). The question of whether APIs are copyrightable was at the heart of the long-running Oracle v. Google saga.
In 2021, the U.S. Supreme Court resolved this dispute on copyright grounds – ruling that Google’s reimplementation of the Java API naming conventions in Android constituted a lawful fair use. This landmark ruling provides important guidance for developers working with APIs for interoperability purposes.
Criteria for Patent Eligibility in Software
For software to be patentable, it must meet specific criteria established by U.S. patent law. Meeting these criteria is essential for successfully obtaining a patent for a software invention.
1. Novelty (35 U.S.C. §102)
The invention must be new. Reviewing existing patents is a critical step to confirm that your software invention has not already been patented. It cannot have been publicly disclosed, described in prior patents or publications, sold, or known to the public before you filed your patent application. This is why keeping your code or algorithm secret before filing can be critical.
2. Non-Obviousness (35 U.S.C. §103)
The invention must not be an obvious or trivial extension of what already exists. Even if no one has done exactly what you have, if your solution would be obvious to a typical software engineer familiar with the field, the patent can be denied.
3. Practical Utility (35 U.S.C. §101)
The invention must be useful and have a specific, substantial utility. The USPTO often refers to practical utility as having “real-world” value – one skilled in the art can use the software to achieve a beneficial result.
4. Eligible Subject Matter
In addition to the above, software patents must clear the hurdle of patentable subject matter (the abstract idea exception discussed earlier). Framing the invention in terms of concrete technical implementation helps ensure it’s within eligible subject matter.
Prior Art Search: Your First Critical Step
Conducting a thorough prior art search early on is essential. Scouring USPTO’s patent database, the European Patent Office database, WIPO’s international patent collections, and technical literature can reveal if similar software solutions exist.
Benefits of Prior Art Search:
- Confirms uniqueness of your invention
- Helps avoid costly infringement issues
- Provides insight into how to differentiate your invention from known technology
- Reveals market gaps and potential collaboration opportunities
Conducting market research alongside a prior art search can provide valuable insights into competitor technologies and help identify market opportunities. A comprehensive prior art search is also a key step in securing patent protection for your software innovation.
Patent Examiner Time Constraints: A U.S. Government Accountability Office (GAO) study found that 70% of patent examiners reported not having enough time to thoroughly examine applications under their workload. This makes your own thorough prior art search even more critical for success.
The Software Patent Application Process
Patenting software involves several critical steps that require careful preparation and strategic thinking. It is important to understand the legal and technical challenges that arise when you attempt to patent software, as the process requires meeting specific criteria such as novelty and utility.
1. Documentation of the Invention
Start by meticulously documenting:
- What your software does and how it works
- Architecture diagrams and flowcharts of algorithms
- Specific problems the software solves
- Any experimental results or performance data
- Technical details about the invention’s design and implementation, ensuring you differentiate between essential technical aspects and broader functional or market-focused descriptions
- Remember that you will need to describe your software invention in such detail that a person skilled in software development could reproduce it based on your description
2. Conduct Prior Art Search
Before investing thousands in a patent application, perform comprehensive searches across:
- USPTO patent databases
- Google Patents and international databases
- Academic publications and technical literature
- The USPTO actually encourages inventors to submit known relevant prior art with their application (via an Information Disclosure Statement)
3. Prepare the Patent Application
Drafting a software patent application is a complex task. A well-prepared patent application is essential to effectively protect software-based inventions. It typically includes: a written description (specification) of the invention, one or more claims that define the legal scope of protection, and often drawings or flowcharts illustrating the software’s architecture or processes.
4. File the Application
For software, this will almost always be a utility patent application (software doesn’t qualify for design or plant patents). Many inventors start with a provisional application to secure an early filing date.
5. Patent Examination Process
After filing, the application enters the queue for examination at the USPTO. Patent examiners will review your application and compare it against prior art. For software, many applications initially face an “Alice” rejection – a claim that the invention is directed to an abstract idea without enough inventive concept.
Timeline Expectations:
- Software patents face an average first action time of approximately 18 months
- Total pendency from filing to grant is about 2–3 years on average
- Multiple rounds of examination are common
Benefits of Patenting Software
Despite the challenges, securing software patents offers significant strategic advantages: Patented software provides exclusive rights and legal protections, giving companies a competitive advantage in the marketplace. Our software offers unique benefits and functionalities that address specific user problems and market needs, setting it apart from competitors. Additionally, our software addresses existing gaps and inefficiencies in the market, demonstrating its value and relevance.
Exclusive Rights and Market Position
A granted patent gives you the legal right to exclude others from making, using, selling, or importing the patented invention in the jurisdiction of the patent. As a patent holder, you have the legal authority to exclude others from using your patented invention, strengthening your market position. This exclusivity can translate into a strong competitive position in fast-moving tech markets.
Attracting Investment and Signaling Innovation
Patents serve as powerful signals to investors and potential partners. A recent 2023 study in Europe found that startups owning intellectual property (patents and trademarks) were up to 10 times more likely to secure early-stage financing compared to those without IP.
In the U.S., similar trends hold – according to a 2020 research study cited by the USPTO, a startup’s first patent is correlated with significant growth, including 16 additional employees hired on average and a large boost in sales over five years.
Revenue Through Licensing
Patents aren’t just defensive tools—they can generate substantial revenue. Many tech companies generate substantial revenue through patent licensing programs. For example, IBM for decades has earned well over a billion dollars per year from licensing its patent portfolio, which includes countless software patents.
Licensing Structure Examples:
- Royalty payments (percentage of sales)
- Per-unit licensing fees
- Lump-sum payments
- Cross-licensing agreements
Challenges and Considerations
High Costs and Time Investment
A typical software patent application, if done professionally and prosecuted to grant, can cost in the tens of thousands of dollars. In one estimate, a patent firm noted that a typical non-provisional patent application ends up costing around $20,000–$30,000 over its prosecution life.
Cost Breakdown:
- Attorney drafting fees: $8,000-$20,000+
- USPTO filing and examination fees: $1,000-$3,000
- Response to Office Actions: $2,000-$5,000 each
- International filings: Multiply costs per jurisdiction
Rapid Technological Change
A patent lasts 20 years, but how often does a specific piece of software or algorithm remain top-of-the-line for even 5 or 10 years? It’s not common. New programming paradigms, new hardware capabilities, and changing consumer needs mean that software solutions are constantly iterating.
Strategic Implications:
- There is a risk that by the time you get your patent issued (say 3 years after filing), the industry standard has moved to a different approach, or your innovation has been superseded by something even better
- Focus on foundational concepts rather than specific implementations
- Build patent portfolios around core technologies with staying power
Alice Test Complications
The law around patentable subject matter has been in flux, and many software patent applications face rejections under Section 101 for being “abstract.” Overcoming those rejections often requires skillful claim drafting and argumentation about technical improvements.
Real-World Examples of Software Patents
Google’s Android OS and Oracle’s Java API Lawsuit
One of the most famous legal battles in the software world was between Oracle and Google over parts of the Android operating system. This case began in 2010 and revolved around Google’s use of Java APIs in Android.
Key Outcomes:
- On the patent side, Oracle initially asserted a number of patents against Google (covering things like runtime optimizations, memory management techniques, etc.). Over the course of the litigation, most of those patent claims were whittled down – some patents were found invalid or not infringed
- In 2021, the U.S. Supreme Court ruled in Google’s favor, holding that Google’s copying of the API declaring code was a fair use under copyright law
Apple’s Slide-to-Unlock Patent
Apple’s “slide-to-unlock” patent (U.S. Patent No. 8,046,721) was filed around 2005 and granted in 2011, and it covered the intuitive gesture of unlocking a smartphone by sliding a finger across an on-screen slider.
The Rise and Fall:
- Initially successful in litigation against Samsung
- In 2016, the U.S. Court of Appeals for the Federal Circuit invalidated Apple’s slide-to-unlock patent as obvious. The court found that there were prior art references (earlier devices or publications) that made the idea of sliding to unlock a phone obvious
- This resulted in Apple losing that particular patent battle – a $119.6 million award it had won in an earlier round was overturned
Patent Litigation and Enforcement
Patent litigation is a reality that every software developer and company must be prepared to face. The stakes are high: patent lawsuits can be expensive, time-consuming, and potentially damaging to a company’s reputation and bottom line. One of the most significant threats in the software industry comes from patent trolls—entities that hold patents not to innovate, but to pursue licensing agreements or settlements through aggressive litigation. These non-practicing entities often target software developers and companies with broad or vague software patents, seeking to extract payments rather than promote genuine innovation.
To minimize the risk of patent litigation, software developers should take proactive steps such as conducting thorough patent searches, ensuring their software inventions are both novel and non-obvious, and seeking patent protection for their own innovations. Securing a strong patent can serve as both a shield and a sword—protecting your intellectual property rights and providing leverage in negotiations or disputes.
Enforcing your software patents is a critical aspect of protecting intellectual property. Companies can use a variety of strategies, from entering into licensing agreements with other businesses to pursuing legal action against infringers. Effective patent enforcement not only safeguards your innovations but can also create new revenue streams and strengthen your competitive edge.
The legal landscape for software patents has been significantly shaped by the Supreme Court, particularly through landmark decisions like Alice Corp. v. CLS Bank International. The Alice decision established a two-part test for patent eligibility, making it more challenging to patent abstract ideas implemented in software. This ruling has had a profound impact on the patentability of software inventions, underscoring the importance of crafting patent applications that clearly demonstrate technical improvements and non-obvious solutions.
Ultimately, protecting intellectual property in the software industry requires a strategic approach to patent law, vigilant monitoring of the competitive landscape, and a willingness to enforce your rights when necessary. By staying informed and proactive, software developers can navigate the challenges of patent litigation and ensure their innovations remain secure.
Actionable Steps for Patenting Your Software
1. Assess Patentability Early
Before diving into patent drafting, conduct a candid assessment:
- Is your software invention truly novel and non-obvious?
- Does it solve a specific technical problem?
- Will it have commercial relevance for several years?
- Can you demonstrate measurable improvements?
2. Engage with a Skilled Patent Attorney
An experienced patent attorney will know how to phrase claims to survive Alice scrutiny (e.g., emphasizing technical improvements) and how to satisfy the disclosure requirements. A skilled patent attorney will also have deep knowledge of intellectual property law, which is essential for navigating the complexities of patenting software. Look for attorneys with specific experience in software patents and your technical domain.
3. Start with a Provisional Application
Filing a provisional patent application is a strategic move for software developers. It allows you to secure an early filing date without requiring a formal patent claim, providing time to further develop your invention before submitting a full patent application.
Provisional Application Benefits:
- Lower cost (government filing fee is low, and you can file a rougher document)
- Immediate “patent pending” status
- 12-month window to file full application while maintaining priority date
- Confidential filing (not published unless converted)
4. Document Development Process
Maintain detailed records of:
- Conception dates and development milestones
- Problems encountered and solutions developed
- Test results and performance metrics
- Prior art you discover and how your invention differs
5. Prepare for Alice Rejections
With software patents, it’s almost standard to face a subject matter (Section 101) rejection initially. Before you even file, brainstorm what your “inventive concept” argument will be if challenged. Include explicit statements about technical improvements in your application.
6. Consider International Strategy
If you have global ambitions, plan your foreign filings within the right time frames. Usually, if you file in the U.S., you have 12 months to file internationally (via direct filings or a PCT application) claiming that priority.
7. Monitor and Participate in Examination
Keep an eye on the application (your attorney will, but it’s your invention so stay in the loop). When an Office Action comes, take time to understand the examiner’s rejections. Consider examiner interviews to clarify technical aspects.
8. Leverage Patent Pending Status
While the patent is pending, use it to your advantage. Mark your product or website with “Patent Pending” if applicable – this can ward off some competitors from copying you.
The Strategic Value of Software Patents
While patenting software requires significant investment and navigation of complex legal standards, the strategic value can be substantial. Patents can protect your competitive edge, create revenue streams, and enhance corporate value. For startups especially, a strong patent portfolio can attract investors, deter competitors, and provide leverage in partnerships.
The key is taking a strategic approach: focus on patenting innovations that provide genuine technical improvements, have broad applicability, and align with your business goals. Combined with thorough prior art searches, skilled legal guidance, and careful timing, software patents can become valuable assets that protect and monetize your innovations.
Ready to protect your software innovations? Start by conducting a thorough prior art search and consulting with a qualified patent attorney who specializes in software patents. The sooner you begin the process, the sooner you can secure “patent pending” status and begin building a defensible position in your market.
Schedule a Free Patent Needs Assessment
Navigating the decision between a DIY patent and hiring a patent attorney can be daunting. Scheduling a Free Patent Needs Assessment with us provides clarity and direction in this critical choice. Our tailored approach helps you understand the pros and cons of each option, ensuring your invention receives the best possible protection. Here’s what you can expect:
- Protection Strategy: We help you weigh the benefits of a DIY patent against the expertise of a patent attorney, crafting a strategy that aligns with your needs and resources.
- Personalized Guidance: Whether you’re leaning towards self-filing or considering professional assistance, we’ll guide you through the complexities of patent law and the application process. Learn more about personalized guidance from Thompson Patent Law.
- Efficient Approach: Our efficient, cost-effective methods aim to streamline your patent journey, reducing risks and enhancing the quality of your application, regardless of your chosen path.
- No Obligation: This free assessment comes with no obligation to retain our services, providing a risk-free opportunity to explore your patent options and make an informed decision.
Take advantage of this opportunity to understand your patent needs better and secure your innovation, whether through a DIY approach or with the support of a patent attorney.
Frequently Asked Questions
Can I patent my computer code directly? No, you cannot patent the specific lines of code you wrote. Copyright law automatically protects your code’s expression (preventing others from copying it). What you can patent are the underlying inventive concepts or methods implemented by your code, provided they meet patent criteria.
What is the Alice Test? The Alice test refers to a two-step framework used by U.S. courts and the USPTO to decide if an invention is too abstract to be patented. Step 1: Is this directed to an abstract idea? Step 2: Did you add something significantly more to turn that abstract idea into a practical application?
How can a patent attorney help? A patent attorney can significantly tilt the odds of success in your favor by advising on patentability, drafting robust applications that anticipate potential rejections, and navigating the complex prosecution process. Their expertise in crafting claims that survive Alice scrutiny and satisfy disclosure requirements is invaluable.
What are the benefits of a provisional patent application? Filing a provisional patent application can be very beneficial, especially for software innovators. Key benefits include immediate “Patent Pending” status, lower initial cost and effort, a 12-month window to refine or test your invention, and confidential filing that stays private unless converted to a full application.Why is a prior art search important? A prior art search ensures novelty, strengthens your application by allowing you to distinguish from similar inventions, helps avoid infringement issues, and saves money by preventing you from investing in applications that won’t succeed due to existing technology.
