Patents and The Internet and Apps

Can anyone describe what is patentable and not patentable as it applies to websites—like Facebook, Twitter, Yahoo, etc. Also for iPhone apps? It is my understanding that ideas cannot be patented, so what specific executions that these guys have that are patentable. (I understand how the artistic aspects are covered under trademark law.)

I have no doubt that aspects of websites and apps are patentable, I’m just trying to figure out the what and why.

Background: a friend have worked out some ideas and would like to understand if any of what we’re developing would be patentable before we speak to investors, as patents would only strengthen our idea.


This seems unlikely! Aren’t inventions “ideas”?

Here are the claims for Amazon’s famous 1-click patent. (This has been litigated; Amazon forced to rewrite claims 1 and 11; and reaffirmed as valid.) In this case, they are patenting “A method of placing an order” and “A client system for ordering an item.”

Assuming we’re talking about United States IP law, the United States Patent and Trademark Office has a website with useful information about Patents, what can be patented, etc… You may want to look at Title 35 of the United States Code, which covers patents.

Ideas by themselves cannot be patented. What can be patented are, from 35 U.S.C. 101,

(Emphasis added)

Process is defined in Section 100 as:

Further, as the Section 101 quote indicates, the new process, machine, manufacture, or composition of matter must be both new and useful. In patent law, that is whether the subject of the patent is “novel” and has “utility”. Novelty is dealt with in Section 102. For a further discussion of utility, see the Federal Circuit case, In re Fisher (.Pdf) Further, the innovation must be “non-obvious,” and that statute covering obviousness is Section 103. There are many more legal issues to look at than the ones I’ve very briefly described. Patentability analysis of software and business methods (which I think the OP is also asking about) can be complex, and everchanging, see In re Bilski, etc… Nothing stops you from researching the material yourself at the USPTO’s patent website, of course.

In short, I would recommend you do what I usually recommend people do here: consult with a legal professional; in this case, a patent attorney or patent agent. (A patent agent is one who is licensed to practice before the USPTO, but who is not an attorney.) S/he will be able to listen to the description of your proposed inventions, and survey the patent and professional literature to see if: the ideas have been written down before (in which case, your invention may not be novel); whether the idea has already been patented, or would be obvious in light of the patent(s); the ideas may not be patentable subject matter. Naturally, this will take some time, and professionals charge for their time. A reputable agent should be able to give you an initial estimate of time and money for this service. Actually drafting patent claims, and then prosecuting that application with the PTO? Well, that will of course, take longer and cost more.

I have looked into the same question long ago, as I was trying to figure out ways to capitalize on software-related inventions. My two cents was and still is that that the only sort of interaction the lone inventor with no disposable income should have with USPTO is searching their database for prior art out of curiosity.

If you are curious enough to read that stuff, you will quickly find out that plenty of patents were handed out to companies that invented, or claimed invention, of new sorts of useful computer apps. E.g. there is a patent (Microsoft, I think) for what we call “autocomplete in IDE”. There is also a patent for a set of improvements to the process of “maintaining a large Cobol codebase”, including an interesting way to structure comments among other issues (issued to a small ISV in California that made and sells the system). There are all sorts of interesting patents for doing useful things in software. It may well be that your idea could fit right in. Plenty of mine certainly would.

Except, that does not mean that you, your company or your investors (if you ever get them) would actually derive any financial benefit whatsoever from obtaining the patent. The system is so setup that the people supposed to benefit from patents are big companies, patent lawyers and USPTO (which is a profitable enterprise, unusually for a federal agency) - certainly not you as an individual inventor or as a small company around the individual inventor.

As the example of ISV I mentioned above shows, a relatively small company that already is up, running and has money in the bank may wish to obtain a patent for bragging rights. Maybe they cannot afford a fancy Google-style headquarters for everybody to envy, but at least they got a US patent with their name on it. But the key point is - “up, running and has money”. If nothing is up and running whereas your expected cashflow is negative for the next two years, adding the patent maintenance costs to that cashflow is not a smart thing to do.

Websites aren’t patentable (though apps on them could be). They are, however, copyrightable).