What is a good example of a brief description on software patency?
Essentially, I'd like a way to communicate what may be patentable and what may not be.
I get asked a lot about software patency and always struggle to describe it in basic terms to groups, like new entrepreneurs exploring new business ideas.
I work with a lot of European based entrepreneurs and start-ups.
I regularly discuss this issue with people, including comparing European and US approaches (I'm a European Patent Attorney). I find it's helpful to think about the underlying problem that is being solved, and the way it is being solved. If this involves some kind of technical advance then the invention may be patent eligible. In Europe there is a greater focus on something being "technical". The US has historically been more open but is moving towards a more "technical" assessment after a recent legal decision (called "Alice" after Alice Corporation vs CLS Bank).
This comes up most often when you have an innovation that is effectively at its core a new business innovation rather than a new technical innovation. So, a company collects some data and provides a cloud-based dashboard for easy analysis of the data. Let's say this is unique and innovative, because other systems in that field don't provide such an overview. This is clearly innovative and commercially important. But if the technologies used are straightforward and do not involve solving some technical problems, then the idea of collecting and presenting the data centrally would not in itself be patent eligible. In Europe this may be seen as a "method of doing business" rather than making a technical contribution to the state of knowledge, while in the US it may be seen as an "abstract idea" because of its use of standard computer technology.
If you had some innovation such as novel machine learning algorithms that provide new capabilities to spot patterns, or some solution to latency or synchronization problems in a cloud computing context, then the story may be different.
Two considerations:
(1) Is the software/invention/idea patent eligible subject matter? Abstract ideas, for example, cannot be patented. However, this is often a matter of proper claiming, and you should consult a patent practitioner for help with that.
(2) Has the software/invention/idea been published by someone else? Or if not, is it obvious given a combination of publications? The answer depends on the specific facts of a given case.
