Can you patent software? In many cases, yes. And it’s often a really good idea to do so.


It’s said far too often that software is not patentable. Whether this stems from a misunderstanding of the state of the law or the law’s seemingly ever-evolving nature, it’s a misconception nonetheless. While it is indeed difficult and tricky to patent software-related inventions, finding success in doing so can add immense value to a company whether the founders are in it for the long haul or looking to set up an exit strategy.

The field of software invention is growing like crazy .

With IT being one of the top-growing industries in the United States1Indeed Editorial Team, 12 Fastest-Growing Industries in the U.S., INDEED.COM (February 25, 2021),, it’s no wonder an amazing amount of invention is coming, and has already occurred, in the software arts. Whether from large companies or from fledgling startups, these inventions often form part of the business’s core value. This is why intellectual property protection is often sought.

Looking into getting a software patent? Schedule an introductory call with us today!

In 2014, it seemed that hope may be lost for patenting software-related inventions with the Supreme Court’s decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l. However, while Alice did arguably increase the difficulty in obtaining patent protection for software, software patent practice has adapted. In other words, while the Supreme Court in its Alice decision set a high hurdle for patenting software, its a hurdle we can in many cases clear.

What does a software patent protect?

The actual lines of code are not what a patent application seeks to protect, rather, we claim around the functionality of the software. This is actually a good thing, as doing so can protect you from competitors making small changes to engineer around your patent. Further, this can increase the value of your patent and—more importantly—of your company.

Often, we have to tie the software to hardware or show how the software improves the functionality of a computer. This may seem odd, but it is the paradigm we must presently work within until the law changes (we’re working on it — Mertzlufft Law has presented formal argument to Congress and the Patent Office to get this law changed). Thus, properly understood, the phrase “software patent,” may be a summary of a broader concept of patenting a software’s functionality and application.

Even though patenting software presents a high hurdle to clear, it’s one we can often clear. This paves the way for patent protection for the core intellectual property of many tech startups and large companies alike.

Schedule a meeting with us today!

Related Insights from Mertzlufft Law PLLC

Joshua Mertzlufft

Section 101 Reform—Is It Finally Happening?

Senator Thom Tillis recently introduced a bill to attempt to reconcile issues Section 101. While there would be quite a bit of refinement necessary to the specific language of the bill, it presents a distinct set of policy goals as a starting point.

Read More »


Chat with an IP attorney

Ready to chat?
Fill out this form to request a free 20-minute consultation with an intellectual property attorney.
Success! Check your email for the next step.

By clicking “Request a Free Consultation,” you request we contact you, and you acknowledge the Terms of Service and Privacy Policy.

Patents, but Practical
We created Practical Patents to help stakeholders learn about patents and identify key issues. We hope you find it helpful!
Thank you! Please check your email for Practical Patents!

By clicking “Get the Guide,” you request we contact you, and you acknowledge the Terms of Service and Privacy Policy.