Trying to Patent an Algorithm?

code-patentsA 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.

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About the Author: Bart Kaspero

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 research has been published in several legal journals and his unique background has helped a broad spectrum of clients. He has provided legal training to lawyers across the US on how to navigate complex criminal record legislation and how to effectively provide privacy to those with past arrests, charges, and convictions. His innovative methods have earned him a top position of authority on the subject of criminal record privacy as well as trust within the criminal data supply chain.