Can You Patent Software in 2025? What Technology Companies Need to Know

The Short Answer: Yes, But the Details Matter Enormously

One of the most common questions technology founders and software engineers ask is whether their invention is patentable. The answer is nuanced. After the Supreme Court's 2014 decision in Alice Corp. v. CLS Bank International, software patent eligibility under 35 U.S.C. § 101 tightened considerably. Yet thousands of software patents issue every year. The difference between an application that sails through examination and one that drowns in § 101 rejections almost always comes down to how the invention is described and claimed — not what the software does.

If you're building technology in Fargo or anywhere in North Dakota, understanding this landscape before you file can save you substantial time and money. It can also be the difference between owning a defensible patent and owning nothing.

Understanding the Alice/Mayo Framework — the § 101 Test

Section 101 of the Patent Act defines patentable subject matter broadly: "any new and useful process, machine, manufacture, or composition of matter." Courts have long recognized three implicit exceptions: laws of nature, natural phenomena, and abstract ideas. The Alice/Mayo framework is the judicial two-step test that USPTO examiners use to determine whether a claim crosses the line into an impermissible exception.

Step 1 (Alice Step 2A, Prong 1): Does the claim recite an abstract idea, a law of nature, or a natural phenomenon? Abstract ideas include mathematical concepts, certain methods of organizing human activity, and mental processes that can be performed in the human mind.

Step 2 (Alice Step 2A, Prong 2): Even if the claim does recite an abstract idea, is that idea integrated into a practical application? The USPTO asks whether the claim applies, relies on, or uses the abstract idea in a manner that imposes a meaningful limit — one that goes beyond the abstract idea itself.

Step 3 (Alice Step 2B): If the claim still fails, does it add something significantly more than the abstract idea? Routine or conventional computer functions — like storing data, performing calculations on a generic processor, or displaying results on a screen — are not enough. There must be an inventive concept.

The practical lesson: examiners are not asking whether your software is clever or commercially valuable. They are asking whether the claim, as written, does more than apply a well-known idea using ordinary computer hardware. Working with an experienced patent attorney who understands both the legal test and the underlying technology is critical at the drafting stage.

What Makes Software Patent-Eligible: Specific Technical Improvements

The Federal Circuit has provided guidance over the years on what types of software inventions survive § 101 review. The common thread is a specific technical improvement to the functioning of a computer, network, database, or other technology — not merely using a computer to perform a business function that humans already perform.

Inventions that have fared well include:

• A new data compression technique that reduces bandwidth use or processing load in a technically novel way
• A method for detecting and preventing a specific type of computer security vulnerability at the hardware or firmware level
• A software architecture that improves the speed or efficiency of a particular type of computation in a way that prior-art architectures did not
• Machine learning models trained on a specific dataset in a novel configuration that produces a concrete technical output — particularly when the improvement is to the model's operation, not merely the business use of its predictions
• Software that controls physical machinery in a new way — robotic systems, precision agriculture equipment, industrial sensors

In each of these cases, the invention improves the computer or system itself, or improves a physical process the computer controls. That is the signal the USPTO is looking for.

What Gets Rejected: Abstract Ideas on Generic Hardware

Conversely, claims that frequently fail § 101 include:

• Methods of organizing, displaying, or filtering data where the novelty lies in the business logic, not the technical implementation
• Financial transaction methods that perform steps a human banker or accountant already performs, now "implemented on a computer"
• Algorithms that perform mathematical operations without any meaningful tie to a physical system or specific technical improvement
• User interface claims that describe a way of presenting information without any novel interaction mechanism at the software or hardware level
• Claims that recite "using a processor" or "storing data in a memory" as their only structural elements — these are treated as generic hardware by examiners

The error most self-filers and inexperienced counsel make is drafting claims that accurately describe what the software does commercially without explaining what the software does technically. An examiner reading a claim should be able to identify exactly how the computer's operation is different — not just how the user's experience or the business outcome is different.

Drafting Strategies That Survive § 101

Strategic claim drafting is the primary tool for navigating software patent eligibility. Several approaches have proven effective:

Use hardware-anchored language: Where possible, tie method steps to specific hardware components with specific roles — not a generic "processor," but a memory-constrained embedded controller with a specific function. Describing the architecture of the system rather than only the outcome elevates the claim.

Claim the technical problem and technical solution: The specification and claims should both articulate a technical problem that exists in the prior art — for example, a bottleneck in a specific type of data pipeline — and explain how the invention solves that problem at a technical level. This record-building in the specification supports the examiner's and the court's understanding of the claim's scope.

Avoid purely functional claiming: Claims that describe results ("a system configured to optimize delivery routes") without specifying the technical means of achieving those results are vulnerable on multiple fronts, including § 101 and §112 indefiniteness. Be specific about data structures, processing steps, and system interactions.

Draft both method and system claims: Method claims and system (apparatus) claims protect the same invention in different postures. System claims that recite specific structural elements are sometimes more durable under § 101 analysis because they tie the abstract steps to a concrete machine configuration.

Build a prosecution history that supports technical character: What your attorney says during prosecution matters. When responding to § 101 rejections, the response should articulate the technical improvement clearly and point to specific language in the specification that supports it. This record can later be used to distinguish the patent from invalidity challenges.

Software Patents vs. Copyright: Understanding the Difference

A common misconception is that copyright adequately protects software. Copyright does protect the literal source code as a creative expression, but it does not protect the underlying functionality, logic, or methods your code implements. A competitor can independently write code that performs the exact same function in the exact same way and not infringe your copyright, as long as they did not copy your actual code.

Patents protect the functional idea — the method, the system, the process — regardless of how it is implemented in code. If you own a patent claiming a particular method for routing data packets, a competitor who writes their own code implementing that method still infringes. That is why software patents, when well-drafted, provide dramatically stronger protection than copyright for technical innovations. Talk to Tom Kading to understand which form of protection — or which combination — makes sense for your specific technology.

Practical Steps for Technology Companies in North Dakota

If you are a software company or technology startup in the Fargo area, here is the practical sequence to follow before investing in a patent application:

1. Document the invention clearly. Write down exactly what problem you are solving, why existing solutions are inadequate, and the specific steps or structures that constitute your solution. Include technical diagrams if possible.
2. Conduct a prior art search. Before spending thousands of dollars on prosecution, search Google Patents and the USPTO database to understand what already exists. This also informs claim scope.
3. Get a patentability opinion from a qualified attorney. A written patentability opinion from a registered patent attorney gives you a professional assessment of § 101 eligibility, novelty, and non-obviousness before you commit to filing.
4. File a provisional application if the invention is ready. A provisional application establishes a priority date for 12 months while giving you time to refine the invention and assess commercial viability. See our patent prosecution services for more on how this works.
5. Invest in professional claim drafting for the non-provisional. This is not the place to cut costs. A software patent application with weak claims provides little to no commercial protection, even if it issues.

Frequently Asked Questions

Is my app patentable?

It depends on what your app does and how it does it. The app itself — as a piece of software — is not the unit of patent protection. What is patentable is the novel technical method, system, or process your app implements. If your app performs a function in a technically new way that improves the operation of a computer, network, or device, there may well be patentable subject matter. If the novelty is entirely in the user experience, business model, or content, patent protection is much harder to obtain under current § 101 doctrine. A patentability consultation with a registered patent attorney is the right first step.

Can I patent an algorithm?

A mathematical algorithm by itself is not patentable — it is considered an abstract idea under § 101. However, an algorithm applied in a specific, concrete technical context can be patentable. For example, an algorithm that specifically improves the efficiency of image compression on mobile hardware, or one that performs real-time anomaly detection in network traffic in a novel way, may be eligible. The claim must do more than recite the math — it must tie the algorithm to a practical application that produces a concrete technical result. How the claim is written is often the deciding factor.

How is a software patent different from copyright?

Copyright automatically protects the source code as a creative expression the moment it is written — no filing required. But copyright only prevents copying of the actual code, not independent reimplementation of the same functionality. A patent protects the underlying method, system, or process regardless of how it is coded. If a competitor writes their own code that performs the same patented function, they can still infringe a patent. For most technical software innovations, patents provide substantially stronger competitive protection than copyright alone. Many companies use both: copyright for the code itself and patents for the core technical methods.