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How difficult it is to obtain a software patent.

Did It Just Get Easier to Obtain a Software Patent?

For the last few years, obtaining a software patent often faced some additional challenges that were often not present for many years prior.

Yet, recent developments have led to what appears to be somewhat of an easing of the software patenting process. For instance, a recent appellate opinion[1] clarified the factual inquiry that the United States Patent & Trademark Office (“USPTO”) is supposed to undertake in the determination of whether or not a software invention is eligible for patent protection. The USPTO even issued a Memorandum[2] to expound on the aforementioned appellate opinion.

From a practical perspective, without expounding upon the various legal intricacies, patent examiners now appear to have a more heightened standard in rejecting software patent applications than what was observed just a number of months ago. For example, rather than simply just stating that a software invention is not eligible for a patent for being well-understood, routine, or conventional, a patent examiner now appears to have to provide some modicum of factual proof to substantiate such assertion.

Given that patent examiners appeared to have more leeway in rejection software patents, as being ineligible, prior to the aforementioned appellate opinion, it appears as if obtaining a software patent, generally speaking[3], may have indeed just gotten a bit easier.

Yet, ultimately the specifics of particular software invention can be assessed by a patent attorney to obtain a more concrete assessment. Patent Ingenuity, P.C. has offices in Beverly Hills, Silicon Valley, and San Diego to assist clients through the software patent application process.

[1] Berkheimer v. HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018).
[2] “Changes in Examination Procedure to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.),” April 19, 2018.
[3] This article is provided for informational purposes only, not for legal advice. The author may be contacted directly to obtain a patent eligibility analysis with respect to a specific invention.

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