Friday, 06 November 2020

Beginner’s Guide to Software Patents

Written by Chloe Yoo

Reading Time: 3 minutes

When it comes inventions, one of the first things that should come to your mind is how to protect it. In the digital age, ‘patents’ have become one of the most common terms used when people talk about protecting their software. In this article, find out what you need to know about software patents and how it can assist your business.

What are patents?

Patents are registered and legally enforceable rights for a device, process, method or substance. Patents are governed under the Patents Act 1990 (Cth) and are granted if an invention is new, investive, useful or innovative. Once granted, patents give you exclusive commercial rights to your invention. In other words, it gives you a temporary monopoly. 

Why should you get a software patent?

Patents for computer-implemented inventions, or ‘software patents’ can offer strong protections for start-ups and any business working in the technology space. As mentioned earlier, patents give you a monopoly over your inventions which means that you will have a competitive advantage. 

How do you get software patents?

When assessing a patent application, IP Australia (Patent Office) looks at:

  1. whether the invention is different to any prior art (novelty);
  2. does the invention involves an inventive step when compared to the prior art; 
  3. is the invention useful;
  4. whether the invention is suitable for patent protection (manner of manufacture).

Before you apply for a software patent, you should ask yourself: 

To satisfy the ‘manner of manufacture test’, the software must allow the computer to do an action that it could not perform before. In other words, you are unlikely to get a patent over a software that merely allows a computer to use existing functions. For example, existing or known functions include data processing, data storage and GPS. Many smartphone apps use these functions and apply them to a business model. These include health or weight loss apps. Here, these apps are not patentable because they are not technical innovations. Rather, they are business innovations.

To read more about how to file a patent, see here

What are the downsides to attaining software patents?

Patents are costly to obtain, especially for smaller businesses or start-ups. They can also take time which is not beneficial, mainly because patents are all about who can have their registration filed and confirmed first. 

Additionally, there is no international patent. A patent granted in Australia can only be enforced in Australia. To have your invention protected in other jurisdictions, you will need to apply for a software patent in those jurisdictions. Again, the cost and time required to apply for patents can impact on your business, especially if you are a smaller business or start-up. 

Moreover, suppose someone else has already patented a similar/ same invention in another country that is a signatory to the Patent Co-Operation Treaty (PCT). In that case, it is highly unlikely that your patent application will succeed in Australia. The reason for this is that Australia is a signatory to the PCT. This means that the overseas patent is likely to be enforced in Australia. 

What are some alternative ways to protect your software?

IP Australia says that businesses and start-ups can rely on other strategies such as:

  • keeping your technology a secret;
  • be the first to market; or
  • make the software an open-source. 

Need further assistance?

Software patents will protect your business and its inventions. However, they are costly, and it may be wiser not to patent your software. As a result, we recommend seeking professional advice from our IP lawyers to determine if your software is patentable and whether that is the best course of action. To register a patent, click here and we can get you started.


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