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Can You Patent an Algorithm?

Thomas Weifan Mon

Associate Patent Attorney
CAN YOU PATENT AN ALGORITHM?

Have you developed a new software code and are wondering if you can patent an algorithm? This is a common question with developers, as they often want to know if their algorithm can be protected under intellectual property law.

Can You Patent an Algorithm?

You might be surprised to know, it’s not as simple of a question as you might think. Before we can answer, it’s best to start with “What are the general patent requirements?“, and “How do the courts view algorithms?

The answer to these two questions may create a unique opportunity for anyone who has developed an algorithm. Keep reading…

Algorithms in Today’s Information Age

Example of a programming algorithm

Artificial intelligence and machine learning developments have skyrocketed in recent years.  As we continue deeper into the information age, software developments have become increasingly important as our culture becomes more and more dependent on computer devices and software.

Software developers are increasingly developing and relying on algorithms to make advances in this digital age. As these software developers have sought to have their ideas patented to protect their intellectual property rights, related patent case law has been changing in this area in recent years. 

General Patent Requirements

Do you have software that can be patented? In general, for something to be patentable it must be useful. To be considered useful, it must fall into one of four categories:

  1. Machine;
  2. Process;
  3. Manufacture; and
  4. Composition of matter. 

Moreover, the invention you are looking to patent must also not be:

  1. An abstract idea;
  2. A natural phenomenon; or
  3. A law of nature. 

Algorithms: Abstract Ideas Vs. Abstract Ideas

That poses the question, “can you patent an algorithm based on these criteria? The problem algorithms run into in meeting these patent criteria is that, on their own, algorithms are abstract ideas. When standing on their own, courts consider algorithms foundational tools for scientific work… rather than patentable ideas. 

The good news is… If you can break down your software algorithm into a series of mathematical steps and procedures that mechanize a process, then the algorithm shifts from “abstract idea” into the patentable “process” category.

So, while an algorithm cannot be patented, you can patent the series of steps that lead to your algorithm. 

Person writing an application for an algorithm patent

Eligibility Criteria for Algorithm Patents

An algorithm is not patentable if it falls into one of three categories:

  • Mathematical concepts;
  • Methods of organizing human activity; or
  • Mental processes.

So to have patentable software, if you can break down your algorithm into a series of steps and explain how it solves a real-world problem, then it will probably meet the eligibility criteria. 

The Alice / Mayo Test

Whether you can patent software has been increasingly fought over in the courts. In Alice Corp. v. CLS Bank, the Supreme Court ruled that because abstract ideas, natural phenomena, and laws of nature “are the basic tools of scientific and technological work”, it was concerned that granting patent rights for these types of tools might impede innovation rather than promote it.  Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).

Alice, and another related legal opinion Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), established a test referred to as the Alice/Mayo test.  This patent law test is as follows:

  1.  Is the claim at issue directed to a “judicial exception,” such as an abstract idea? If so then:
  2. Do the claims contain an element or combination of elements to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself?

Alice and the lower court cases that followed it have established the standard for subject matter eligibility in the U.S. Different countries will have different standards

The United States Patent Office has put out some useful guidance on patent subject matter eligibility which explains this test in greater detail to help understand if you can patent an algorithm. 

Examples Of Algorithm Patents

Person holding a phone software

An example of a recent algorithm-related patent can help explain the type of software code that could be eligible for a patent. For example, Amazon is seeking to patent an algorithm for :

“a system for capturing and processing portions of a spoken utterance command that may occur before a wakeword.”

Essentially, Amazon is hoping to patent the algorithm underlying the software idea that Alexa, its ‘smart’ speaker, will be able to recognize specific spoken words such as “love” or “hate” during speech taking place around it, even if the wakeword “hey Alexa” has not been used before making the statements. 

Who Is Patenting Algorithms?

Everyone from large tech giants like Google and Apple to small start-up companies are having algorithms patented.  Artificial intelligence is developed across different countries. A majority of algorithm patents are being assigned to large tech companies located in the United States and Japan. 

In terms of specific companies, IBM is the current leader of artificial intelligence patents. IBM currently has over 8,000 patent applications, followed by Microsoft with over 5,000 patent applications. Toshiba and Samsung are companies that are also high on the list of total artificial intelligence patents. 

Types of Artificial Intelligence Patents

The WIPO recently released a report based on a detailed study of recent artificial intelligence patents.  It found that:

  • Machine learning is the dominant artificial intelligence technique disclosed in patents;
  • For artificial intelligence functional applications, computer vision (which includes image recognition) is the most popular to be patented; and
  • Transportation and telecommunication are the top fields for artificial intelligence applications. 

Patent Rights Vs. Copyright Rights for Algorithms

Patent rights are not the only form of intellectual property rights. Even if you cannot patent your software because you cannot distill it down to a series of steps, you may be able to copyright aspects of it, such as the source code. Copyrights protect original works of authorship. 

Computer programs are copyrightable. Keep in mind that copyright rights actually last longer than patent rights, and so can preserve your control over portions of your software longer than a patent might be able to. These rights are different from patent rights, however, so it’s important to get legal advice to understand your various intellectual property rights. 

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