A common question for developers is whether or not their algorithm can be protected under intellectual property law–most specifically as a patent. The issues falls under two competing thoughts: abstract ideas versus the patent eligibility of a “process”. The word process is important in this context because an algorithm is at it’s essence a series of steps that when undertaken with code, mechanizes that process.
The landmark decision often cited for this discussion is In re Bilski, which ultimately made it to the Supreme Court as Bilski v. Kappos. Essentially, many patents have been rejected or criticized by some advocates as being abstract ideas that lack any concrete functionality. As a tool for determining patent eligibility, the court supported the machine-or-transformation test but reiterated that it is not the sole test to make that determination. So to think of it in more simpler terms, if there is a business process someone has “created”, and decided to claim ownership over the inventiveness of that process, it is better to make that process concrete through some kind of unique machine function instead of a bare step-by-step announcement that it can be done.
So…can you patent an algorithm?
It’s possible. The opinion of Bilski v. Kapps has been judged as not giving much direction to software developers who consider filing for intellectual protection. However, innovators should serious consider whether their inventions are supported through the machine-or-transform test.
The machine-or-transform test states that either the process you are patenting be done so through a machine that is non-conventional or can transform an article from one state to another. Traditionally, an “article” was something you can hold, but courts eventually supported the patentability of electronic signals and later cases dealt with processes that were done on the Internet.
So to drive the point home, a pure algorithm in it’s own cannot be patented. But the closer it can be tied to a machine like mechanism or transformative entity, the more likely it is a patentable invention.
Bart Kaspero is an experienced criminal defense and regulatory attorney who has focused on using technology and the law in bringing privacy to criminal records. His unique background has allowed him to help a broad spectrum of clients and cases involving cryptocurrency, import/export violations, cannabis/CBD licensing, consumer protection, and emerging market businesses.
100 Spectrum Center Drive
Irvine, CA 92618
Disclaimer: Nothing within this site shall be construed as legal advice nor does it create an attorney-client relationship by virtue of any material written. Providing any information through this site that is time sensitive or confidential is strongly discouraged.