Does the US patents office still accept software patent applications?
Updated: Dec 7, 2022
The short answer is 'no'. US Examiners routinely reject applications for software inventions on the basis they are allegedly "mere abstract ideas".
However, all ideas are abstract, software inventions can generate massive revenue and transform societies and it can take just as much ingenuity to make a software invention as it takes to solve any other problem which requires a mechanical solution.
Arguing with an Examiner about whether an invention is a mere abstract idea is virtually impossible as the objection is mostly subjective. It becomes a case of the attorney's opinion versus the Examiner's opinion. By contrast, the assessment of novelty which is more objective. That is, the novelty of the invention is merely determined by whether the prior art either has all the features of the claimed invention.
Here is the precedent text that US patent examiners routinely "cut and paste" in response to all software patent inventions:
"Claim Rejections - 35 USC§ 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title
Claims ... are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
In the instant case, claims 1-5 are directed towards a machine or article of manufacture.
Regarding claim 1, the claim is directed to the judicial exception of certain methods of
organizing human activity such as managing personal behavior or relationships or interactions between people, including social activities, teaching, and following rules or instructions. The following claim limitations are analogous to court identified abstract ideas that are representative of certain methods of organizing human activity: '...'.
The concepts described in the limitations when taken both as a whole and individually are not meaningfully different than those found by the courts to be abstract ideas and are similarly considered to be certain methods of organizing human activity such as
managing personal behavior or relationships or interactions between people, including social activities, teaching, and following rules or instructions.
Additionally, the claims do not recite a practical application of the abstract concepts in that there is no specific use or application of the method steps other than to make conclusory determinations. The claims do not recite any particular use for these determinations that improve upon the underlying computer technology. Additionally, the claims recite the additional elements of: '...' (computer processor and memory with computer instructions and graphical user interface).
Examiner notes that the implementation of the abstract concepts utilizing technology in this way is generally linking the use of the judicial exception to a particular technological environment or field of use (See MPEP 2106.0S(h)). Accordingly, Examiner does not find that the claims recite a practical application of the abstract concepts recited by the claims.
Additionally, the elements of the instant process, when taken in combination, together do not recite significantly more than the abstract idea itself. In regard to the claims showing significantly more, the claims do not recite "significantly more" because the claim is not either 1) improving another technology, 2) improving the functioning of the computer itself, 3) Applying the judicial exception with, or by use of, a particular machine, 4) Effecting a transformation or reduction of a particular article to a different state or thing, 5) Adding a specific limitation other than what is well-understood, routine and conventional in the field, or adding unconventional steps that confine the claim to a particular useful application, or 6) Other meaningful limitations beyond generally linking the use of the judicial exception to a particular technological environment, as pointed out in the USPTO 101 Guidance.
The method and system, as claimed by the applicant, is no more than a general linking of the use of the abstract idea (an idea of itself) to a particular technological environment (the use of computers to calculate and transmit data). The recitation of well-known computer functions does not meet the "significantly more" threshold. Additionally, the application of computer technology amounts to merely applying the abstract concepts via computer elements. (see Applicant's disclosure for implementation of computer components in Paragraph Numbers ...). The recited computer elements and functions that are applied to the abstract idea in the claims are ...
Claims ... when analyzed as a whole, are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitation(s) are rejected based upon the same rationale, wherein the claim language does not recite "significantly more" than the abstract idea.
Specifically, claims ... further narrow the abstract idea in that they recite additional computations or calculations that are a part of the above identified abstract idea. Additionally, claims ... do not recite any additional elements beyond the overarching abstract concepts recited by the independent claim.
Regarding claims ..., the claim is directed to an apparatus/system and computer readable media for performing the method steps as described above and are rejected in that the recited computer components in the apparatus/system and computer readable media claims add nothing of substance to the underlying abstract idea. The application of computer technology in the claims merely serves to facilitate computerized implementation of the abstract idea. (see Applicant's disclosure for implementation of computer components in Paragraph Numbers ...).
The claims as a whole, do not amount to significantly more than the abstract idea itself. This is because the claims do not effect an improvement to another technology or technical field; the claims do not amount to an improvement to the functioning of a computer itself; and the claims do not move beyond a general link of the use of an abstract idea to a particular technological environment. In addition, the claims are not necessarily rooted in computer technology without an analogous situation that does not involve computer technology.
Accordingly, the Examiner concludes that there are no meaningful limitations in the claims that transform the judicial exception into a patent eligible application such that the claims amount to significantly more than the judicial exception itself.
Note: The analysis above applies to all statutory categories of invention. As such, the presentment of any claim otherwise styled as a machine or manufacture, for example, would be subject to the same analysis.