Can I patent software that solves a unique problem?

Can I Patent Software That Solves a Unique Problem?

Software patents represent one of the most complex and evolving areas of intellectual property law. When a developer creates software that solves a unique problem, the question of patentability becomes particularly relevant to protecting that innovation in the marketplace.

Software Patent Eligibility Fundamentals

Software patents fall under the broader category of "computer-implemented inventions" and must meet several criteria to qualify for patent protection:

• Novelty - The software must be new and not previously disclosed
• Non-obviousness - The software solution must not be obvious to someone skilled in programming
• Utility - The software must serve a useful purpose
• Patent-eligible subject matter - The software must qualify as patentable subject matter

This last requirement has been particularly challenging for software patents following key Supreme Court decisions.

The Alice Framework and Software Patents

The landmark 2014 Alice Corp. v. CLS Bank International decision established a two-part test that significantly impacts software patentability:

Step 1: Abstract Idea Analysis

The first question asks whether the patent claims are directed to a patent-ineligible concept, such as:

• Abstract ideas
• Mathematical formulas
• Mental processes
• Fundamental economic practices

Most software inventions face scrutiny under this first step, as algorithms and computational methods can resemble abstract ideas.

Step 2: Inventive Concept Analysis

If the claims are directed to an abstract idea, the second question asks whether the claims add "significantly more" to transform the abstract idea into a patent-eligible application:

• Technical improvements to computer functionality
• Implementation of the idea in a specific way
• Application of the idea using specialized machines or transformations

According to the United States Patent and Trademark Office (USPTO), software that implements a solution to a technological problem is more likely to satisfy this "significantly more" requirement.

Problem-Solution Approach to Software Patents

Software that solves a unique problem has stronger patentability potential when the innovation is framed in terms of its technical solution rather than the abstract idea it might implement.

Technical Problem-Solution Framing

Successful software patents typically:

• Identify a specific technical problem in computing or a related field
• Explain why existing approaches were inadequate
• Detail the technical solution implemented in the software
• Demonstrate technical improvements over prior approaches

Finjan, Inc. v. Blue Coat Systems, Inc. established that software innovations that improve computer functionality may be patentable when they solve a problem in computing itself.

Examples of Patentable Software Solutions

Software solving problems in these areas has frequently qualified for patent protection:

• Data encryption technologies (H04L9) - Security solutions that protect data using novel cryptographic approaches
• Image processing methodologies (G06T) - Techniques for analyzing or transforming digital images in new ways
• Database management innovations (G06F16) - New approaches to organizing or retrieving information
• Machine learning applications (G06N) - Novel algorithms that enable computers to learn from data

Red Hat, a leading open-source software company, notes that "software patents that solve concrete technical problems rather than implementing abstract business concepts have a higher likelihood of withstanding patent eligibility challenges."

Industry-Specific Software Patentability

The patentability of problem-solving software varies significantly by industry:

Fintech Software

Financial technology software faces heightened scrutiny after Alice, as financial processes may be considered abstract ideas. However, technical improvements in areas like:

• Blockchain security (G06Q20/06)
• Real-time transaction processing
• Fraud detection algorithms

Companies like Square have secured patents for payment processing technologies that focus on specific technical implementations rather than abstract financial concepts.

Healthcare Software

Medical software often has stronger patentability prospects when solving specific healthcare problems:

• Diagnostic image analysis (G16H30)
• Patient data management systems
• Telemedicine platforms

Philips Healthcare has successfully patented numerous software solutions that improve medical imaging technology through specific technical implementations.

Cybersecurity Software

Security software that addresses specific technical vulnerabilities typically has strong patentability prospects:

• Network intrusion detection
• Malware identification
• Encryption protocols

CrowdStrike holds numerous patents for endpoint security software that uses specific technical approaches to identify and mitigate threats.

Strategic Approaches to Software Patents

Claim Drafting Strategies

For software that solves unique problems, patent applications should:

• Focus claims on specific technical implementations
• Include detailed flowcharts and process diagrams
• Describe hardware interactions where relevant
• Emphasize technical improvements over conventional approaches

TLO, the technology licensing office of MIT, advises that "patent claims for software should be drafted to emphasize how the invention improves the functioning of the computer itself or another technology."

Complementary IP Protection

A comprehensive protection strategy for problem-solving software might include:

• Patents for novel technical implementations
• Copyright for the source code itself
• Trade secrets for algorithms or methods difficult to reverse-engineer
• Trademarks for product names and branding

Microsoft, one of the world's largest software patent holders, employs this multi-layered approach to protect its innovations.

Rapid Development Field Considerations

In fast-evolving software fields, consider:

• Filing provisional applications early to establish priority dates
• Using continuation applications to adapt to changing technology
• Identifying core innovations with longer-term value

Cisco Systems strategically patents foundational networking software technologies while reserving some innovations for trade secret protection.

Questions about Patenting Problem-Solving Software

How Do I Demonstrate That My Software Solves a "Technical Problem"?

To establish that your software solves a genuine technical problem, document specific computational or technological challenges that existing solutions fail to address. Identify concrete technical limitations in current approaches—such as excessive processing time, memory usage inefficiencies, security vulnerabilities, or integration difficulties between systems. Collect quantitative benchmarks showing how your solution improves technical performance metrics (speed, accuracy, resource utilization, etc.). Articulate how your software changes the underlying technological process rather than merely automating existing methods. In your patent application, explain the technical architecture that enables these improvements and why alternative approaches couldn't achieve similar results. The USPTO looks favorably on software that improves computer functionality itself, solves internet-centric challenges, or enables computers to perform tasks they couldn't previously accomplish.

How Specific Should My Patent Claims Be for Problem-Solving Software?

Effective software patent claims require a careful balance between breadth and specificity. Your independent claims should be broad enough to cover various implementations of your core innovation while specific enough to overcome subject matter eligibility challenges. Include both method claims (describing the process) and system claims (describing the components). Articulate the technical steps that transform abstract principles into specific applications. Avoid claiming the problem itself ("a system for solving X") and instead claim the particular technical solution ("a system that performs specific steps A, B, and C to solve X"). Include dependent claims that narrow your invention with specific implementations, optimizations, and use cases. Consider claims of varying scope—some broadly protecting your core concept and others narrowly protecting specific implementations. This tiered approach provides fallback positions if broader claims face challenges during examination or litigation.

How Does Open Source Software Intersect with Patent Protection?

Open source software and patent protection have a complex relationship that requires careful navigation. You can patent software and release it under an open source license, but this creates important considerations. Some open source licenses (like GPL) include patent grants that effectively license your patent to anyone using the software. Others (like Apache 2.0) have explicit patent provisions that terminate patent rights for users who initiate patent litigation. Before pursuing patents on open source software, determine your business objectives—whether you're seeking defensive protection, licensing revenue, or competitive advantage. Companies like IBM, Red Hat, and Google maintain substantial software patent portfolios while actively contributing to open source, often using patents defensively or creating patent pledges not to assert patents against open source implementations. If contributing to existing open source projects, review their licensing terms carefully to understand how they affect your patent rights.

How Do I Assess if My Software Solution is Non-Obvious for Patent Purposes?

Non-obviousness is evaluated from the perspective of a "person having ordinary skill in the art" (PHOSITA) at the time of invention. To assess your software's non-obviousness, start by conducting a thorough prior art search across patent databases, academic publications, open source repositories, and commercial products. Identify the closest prior solutions and document specific technical differences between them and your approach. Consider whether combining existing solutions would naturally lead to your innovation or if your approach required unexpected insights. Document failed approaches you tried before discovering your solution—these demonstrate non-obviousness. Gather evidence of industry skepticism or praise, as these suggest your solution wasn't obvious to experts. Quantify performance improvements that exceed what would be expected from incremental advancements. The more your software solves a longstanding problem that others failed to address, or achieves results that surprised even those skilled in the field, the stronger your non-obviousness argument becomes.

How Do Global Differences in Software Patent Laws Affect My Protection Strategy?

Software patent protection varies significantly across major jurisdictions, requiring a tailored global strategy. The United States generally offers the broadest protection for software innovations, particularly those that solve technical problems, though subject matter eligibility remains challenging after Alice. The European Patent Office requires software to have a "technical effect" beyond the program itself—solving a technical problem with technical means. Japan and South Korea have relatively favorable approaches to software patents but require clear technical contribution. China has become increasingly receptive to software patents, particularly those with hardware integration. India maintains stricter limitations on software patents, generally requiring hardware elements. When developing your global strategy, prioritize filings in jurisdictions most relevant to your business while adapting claim language to each region's requirements. Consider filing a PCT application to preserve international rights while deferring country-specific decisions. For regions with less favorable software patent protection, emphasize copyright, trade secret, and contractual protections as alternatives.