Patent Search for Software
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How to Conduct Patent Searches for Software
Conducting a patent search serves numerous purposes. First, it allows you to understand what technology is in the field. Second, it can provide you a good starting point for drafting your patent application.
If you are developing a software (or have already developed a software) for which you are considering seeking utility patent protection, your first step should be to conduct a patent search for similar software. Hopefully, for your sake, you will not find existing technology that is too closely-related to your software. But, it would certainly help if you were to find some related patents to guide you through the best way to capture the intellectual property within the patent application. Even if you cannot find a comparatively similar software, you can still study various examples of software patents to learn more about reading, understanding, and developing patent language.
Utility Patents for Software
To patent software, you will need to file a utility patent with the United States Patent and Trademark Office (USPTO). Like other utility patents, to be eligible for protection the software (an invention) must meet the following requirements:
• Novel - This means that the software must have been newly created. It cannot currently exist in the market. Also, it cannot have been the subject of a prior patent filing in the United States or elsewhere in the world.
• Non-Obvious - An invention in non-obvious when a person who works in the field and has thorough knowledge of this type of invention would not believe this to be common sense or a common understanding of principles in the field. This type of individual is known as a POSITA (“Personal having Ordinary Skill in the Arts). There is no way of explaining exactly what is commonly understood or commonly known. It would vary depending upon the nature of the invention and the industry.
• Useful - The software must have some form of utility. That is, it must be able to be employed or used for some function. The function does not have to be a readily understood outcome. The software must simply perform some function that could potentially be of use or valuable in itself or when integrated with some other function or machine. For software, this generally means the software must perform some tasks or achieve some objective desired by the user or operator. It must generally do so through its interaction with a processor or computing device.
It’s important to point out that this form of protection is far different from copyright protection. Copyrights protect a new, creative expression that is written down or otherwise recorded. When you write the computer code for a software, that sequence of code is subject to copyright. Unfortunately, copyright protection is not very useful for a software program. A code sequence or a computer language is simply one way of telling a cod compiler to execute a task. There are innumerable ways to say the same thing to the compiler. What is unique is what you are telling the compiler and the basic sequence or order in which you are telling it with your code. As such, you will have copyright protection in your computer code. But, your objective should be to secure patent protections if you want to stop other from mimicking your software in an alternative computer language.
A utility patent holder has the legal right to exclude others from infringing upon her patent rights. Infringement generally includes when someone other than the inventor:
• Reproduces the invention for a commercial purpose (such as selling or licensing it);
• Uses the invention in a commercial manner without having validly licensed or purchased it;
• Distributes the software to others for use without license or valid authorization.
The key permission necessary to do any of these things with software is to secure a license from the inventor or patent holder. Most types of software is sold as a temporary or permanent license for the purchase. That license is limited in that it only allows the purchaser or individual license holder to use or otherwise employ the software. A well-developed license agreement will define the conditions under which third-parties (individuals other than the purchaser) can use the software.
What are You Searching for During a Patent Search?
Your primary purpose when conducting a patent search is to identify prior “art” (inventions in the field) relevant to your patent. As previously stated, it is a big advantage to know what is out there. Also, it can help you in drafting your patent application. The search will certainly begin with current patents for software. It will then expand to expired patents, patents pending, filed by rejected or not completed patents, etc. You should also take it one step further and search for commercial products that may not have been subject to a patent application. It’s not uncommon for software companies to market a product commercially without seeking or securing patent rights. This is generally a strategic decision based upon the type of software and its function in the market.
What are Some Tools for Searching Software Patents
There are a litany of databases (free and paid, public and private) that allow users to search for patent filings. The most well known free databases are:
Google Patents - Google Patents is a free service put out by Alphabet, Inc. It provides simple and advanced patent search functions. It provides a vast database of patent applications. It also includes much of the communications between the patent examiner at the USPTO and the inventor.
USPT Patent Database - The USPTO database is a resource to help individuals. It provides full-text patent filed after 1976; PDF images of pre-1976 patents, full-text keyword searches.
Patentscope - Patentscope is a free database that is managed by the World Intellectual Property Organization (WIPO). It contains patent filings from most major patent-filing countries and international patents under the Patent Cooperation Treat (PCT).
Espace - Espace is managed by the European Union. It is a free public database similar to the USPTO, but it covers the European Union and numerous other patent-filing countries.
Acclaim IP - This is a database that can give you strategic information on what patents belong to your competitors. It provides search based upon patent holder name.
SPI (Software Patent Institute Database) Data - This is a great search engine for using keywords to search entire patent documents.
Sumbobrain.com - This database provides free patent searches using boolean logic.
PatentBuddy.com - This is a free tool that provides a fairly comprehensive database for searching patents.
There are also numerous paid search databases available. These are generally better suited for patent search professionals. These databases contain basically the same information as the public, free databases. The differences regard the functionality and search options. A professional that better understands search functions may be able to navigate these functions.
It is still advisable to work with a trained professional when conducting a patent search.
How to Choose the Best Software for Searching Patents
Here are a few considerations when trying to find the best software for searching patent applications:
How easy is it to use? Some of the patent search databases are very simple to use. Other databases have extremely functions. These options include keyword search, full-text search, boolean search, category search, etc.
What does it cover? Basically, you need to know whether it covers patent filings, granted patents, USPTO communications, etc.
Geography? What countries does the patent database cover.