Protecting your business and its intellectual property can be crucial to your success. Your intellectual property can distinguish you from competitors. What if the thing that sets you apart is a key process that you use in running your business, such as a process for offering services or a manufacturing process related to products you sell? How do you protect that process?
These processes may be patentable, and we often refer to such patents as business method patents. Today’s blog will explore business method patents through the lens of patentability and how the current rules and regulations impact your protection of such processes.
What is a Business Method Patent?
A business method patent is a utility patent (i.e., as opposed to a design patent) that protects a process for doing business. These patents can cover a wide range of methods such as data processing, anti-fraud methods, inventory management, customer relationship management, accounting, best practices, etc.
Without protection, such business methods could be shared freely between competitors. Although some industries enjoy open sharing of innovation among competitors, in other industries, protection of such business methods is critical to competition and innovation.
Patentability of Business Method Patents
How do you secure patent protection for these vital business methods? Ultimately, it comes down to discerning and identifying what is actually patentable. The U.S. Patent and Trademark Office (USPTO) requires four key elements:
- To be a specific, non-abstract idea or concept that is not simply a law of nature or natural phenomena
- To be useful and applicable
- To be new and unique from all prior knowledge of the subject matter or invention
- To not be so obvious that any layperson could reasonably come up with the same idea
Whether business methods represent non-abstract ideas or concepts has been discussed for decades. I recall studying cases related to this issue as an associate attorney in the mid 90s. How do you know whether the process you have developed in connection with your business is patentable in light of this ongoing debate?
Of course, the U.S. Patent and Trademark Office is the initial arbiter of whether your invention is patentable, but the Courts, including the Supreme Court, have provided guidance to the USPTO regarding its assessment of patentability. Although there is guidance, sometimes that guidance is not instructive, and many argue that the guidance is not entirely useful or helpful and that the Courts should provide clear and thorough instruction on the patentability of business method inventions. To the disappointment of many, recently the Supreme Court has declined to take up cases related to the issue of the abstract idea exception.
Securing a Business Method Patent
Your best path forward with business method patents is to be clear and specific when submitting your patent application to the USPTO. This means describing the method in clear detail in a manner that essentially allows anyone reading the patent to understand the invention and how to implement the method. Perhaps more important, though, it’s important to identify specifically the hardware, software, or other equipment, i.e., the structure, that is necessary to execute the claimed process or method. Without this level of detail, the patent office often argues that the invention is simply an abstract idea and not eligible for patent protection.
To adequately protect your business methods and processes, it’s important to talk to a patent attorney. Contact McDermott IP Law for legal assistance with the patent application and enforcement process.
McDermott IP Law
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