SOFTWARE IS PATENT-ELIGIBLE, BUT IT’S ALL ABOUT THE CLAIMS

Contact: Eric Bernsen, Procopio
Posted May 1, 2019

Apps, computer- or smartphone-enabled processes, smart devices, and IoT solutions, often center on the same core element: software. Is your software, app, or process patentable?  Well, to provide the stereotypical lawyer answer, it depends. But, at least in the near term, it seems easier now than it was before January 2019.

The definition of patent-eligible subject matter is codified in 35 U.S.C. § 101:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”

Several court decisions have created a number of judicial exceptions to this, including products of nature, natural/physical laws, natural phenomena, mental processes, and the infamous “abstract ideas.” The courts have also tortured the concept of the “abstract idea,” as judges and justices have been reticent to ascribe any concrete definition to the term.

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