Why Non-U.S. Software Developers Should File U.S. Patent Applications

While untainted software is problematical to patent in Europe, the UK, China, and plenty of other countries, due to a requirement of a "technical effect," there isn't any requirement in the United States. This has been established in a recent decision by the U.S. Supreme Court, Bilski et al. V. Kappos.

In accord with the Supreme Court, the machine-or-transformation test is a practical and significant clue for determining whether a number of claimed inventions are operations under section 101. But the machine-or-transformation test is not the one and only test for determining whether an invention is a patent-eligible "procedure."

While several commentators cried over the actuality that the Supreme Court abstained to outline an unmistakable test for determining when a business method is qualified of patent protection, I feel that I can assert that almost any software invention and most business methods in such a behavior as to attune with this test.

I propose that companies in the UK, China, Japan, Brazil, and India, and elsewhere routinely file software patent applications and business method patent applications in the USA since it is more feasible to gain allowance of a software patent in the USA than in their own countries. Additionally, the U.S. is a key potential marketplace for software and apps.

The USA has no outright veto in opposition to software patents. On the converse, almost any software invention (as long as it is unique and non-obvious) is qualified of being patented in the U.S. This includes corrections in user interfaces, original algorithms, novel applications, and even adaptations of existing software.