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Improvements to technology used in your business are eligible for patenting--it's not your business.

November 17, 2016View for printing

If you have talked about patenting inventions lately, you might have been told that software per se is not eligible for patenting and that you should protect your business's intellectual property (IP) using copyrights, trade secrets and trademarks - all forms of "soft" IP. While software's source code itself (software per se) cannot be directly patented, it can be protected in a patent claim by expressing the software as a process describing how the software works. This approach is not without its challenges. It can be difficult to capture the software at a level of detail that is both patentable over the prior art and difficult to design around. Since the Supreme Court's recent Alicei decision, a new challenge has appeared: expressing software in a patent eligible way. Despite the challenges of patenting software and the availability of soft IP approaches, patenting technology improvements provides unique advantages over other kinds of IP protection and recent court decisions have provided meaningful pathways to address challenges to patent eligibility.

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