Software inventions are no harder to patent then other types of innovations. However, many software patents are often only allowed after significantly narrowing the scope of the claims, resulting in patents that offer much less protection and that may be easily engineered around. This is not because software inventions are less patentable. Instead narrow software patent claims often result from a lack of structural detail in the software patent application.
Just as patent applications for mechanical inventions that arrange well-known elements such as supports or tubes in a unique structure are regularly allowed, software inventions that organize basic software elements in unique structures are also patentable. However, the key inventive structural details of innovation must be carefully described and claimed in order to secure broad patent coverage. These key inventive structural details include algorithm descriptions, data structure descriptions, and interface descriptions.
Algorithms and rule descriptions are often critical in distinguishing the structure of a software invention. The description of an algorithm or rule should include multiple levels of detail with multiple embodiments of implementation. For example, an algorithm that determines when to perform a key function should include a high level written description of the conditions for performance, two or more written refinements that further modify the conditions of performance, and several embodiments of equations or logical statements that should how the algorithm can be explicitly implemented.
Data structure descriptions must include much more information than simply that key data is stored. The details of the data structure should include structural details such as specific data fields and a description of the data stored in those fields, relationship details between data values that are stored in the data structure, and functional details of how the data is employed. For example, a description may include the details of each data field, algorithms for deriving one data value from other values, and the algorithms that employ the data values.
Interface descriptions may be the most important inventive elements to protect. Unlike algorithms and data structures, interfaces with software and/or hardware elements are much more easily observed for evidence of infringement. One should carefully describe and claim the unique data elements and functions employed by an interface. For example, a software interface to a database engine should describe the key variables that are passed through the interface, the functional results of the variables, and the order and conditions of key handshaking exchanges.
By describing the details of algorithms, data structures, and interfaces, a software patent application will typically include enough information to broadly claim the invention while distinguishing it from dissimilar innovations. As a result, your software innovation and competitive advantage can be protected from copying.
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