Can I get patent for software application in US? How much it will cost?
The software could be protected by means of copyright as well as patents: Copyrights are straightforward and the simplest form of protection for the software code or source code
There are some advantages for copyright protection :
- It is much simple to protect software code by copyright
- Copyright is done as soon as the work is created
- a long period of protection ( life of the author plus 50 years)
But, copyright provides very limited protection to the software!!!
By its nature, the copyright is meant to protect the expression of the work!!! And not the concept behind the expression, procedures or methods, in many cases the idea behind the software code is an important asset to the business which can only be protected to an appropriate extent by means of patents. Hence the importance is given to winning a patent for the software!!!!
In most cases the software can be only minor part of the invention; it could be used with the hardware to perform certain functions which could be the solution to some technical problem!!!
In some cases, the software code is the instructions given to the microprocessor or microcontroller so as to enable it to perform a certain function which is solving some technical problem (the inventive step). And the solution is novel, non-obvious, and useful, in such case that software can be the patentable subject matter.
The main inventive step may also lie in the system or apparatus or an algorithm or the method etc… and software maybe just a part of the invention.
Any invention (including software invention) to be able to be patentable must meet the following criteria’s:
- invention is a patentable subject matter;
- the invention is capable of industrial application (or, in certain countries, be useful);
- it must be new (novel);
- it must involve an inventive step (be non-obvious); and
- The disclosure of the invention should be enabling.
Software Patents in the USA: A Comprehensive Guide
The landscape of software patents in the United States has undergone significant evolution, particularly following the landmark Supreme Court decision in Alice Corp. v. CLS Bank International. As of 2025, software patents remain both obtainable and enforceable, but navigating the complex eligibility requirements requires careful strategic planning and precise drafting.
The Current State of Software Patents
Software-related inventions continue to represent a dominant force in the U.S. patent system, accounting for approximately 62.7% of all utility patents granted in 2023. This translates to roughly 195,000 software-related patents granted in a single year, demonstrating that patent protection for software remains very much alive and actively pursued by innovators across industries.
The USPTO has reaffirmed its commitment to protecting software innovations through updated guidance, particularly the comprehensive AI-specific eligibility guidance issued in July 2024. This guidance, effective July 17, 2024, followed a White House executive order directing agencies to adapt to AI innovations and provides crucial clarity on how examiners should apply patent eligibility tests to software and AI-related claims.
The Alice Decision and Its Impact
The 2014 Supreme Court decision in Alice Corp. v. CLS Bank International established a two-step framework that fundamentally transformed software patent examination and litigation. This decision held that patent claims for computer-implemented electronic escrow services were directed to abstract ideas and not patentable subject matter.
The Alice/Mayo Two-Step Test
The Alice framework requires courts and patent examiners to apply a rigorous two-part analysis:
Step 1: Determine whether the claim is directed to a patent-ineligible concept, such as:
- Laws of nature
- Natural phenomena
- Abstract ideas (including mathematical concepts, certain methods of organizing human activity, and mental processes)
Step 2: If the claim is directed to a judicial exception, determine whether the claim contains an “inventive concept” that transforms it into a patent-eligible application – something “significantly more” than the abstract idea itself.
For software patents, this means demonstrating that the claimed invention improves computer functionality, solves a specific technological problem, or applies the abstract idea in a specific, non-generic way that involves concrete technological improvements.
Section 101 Eligibility Challenges
Software patents face particularly intense scrutiny under 35 U.S.C. § 101, which defines patent-eligible subject matter. The challenge lies in distinguishing between abstract ideas (which are ineligible) and concrete technical implementations (which may be eligible).
Abstract Ideas in Software Context
Courts have identified several categories of abstract ideas that commonly affect software patents:
- Mathematical concepts and formulas
- Certain methods of organizing human activity
- Mental processes that can be performed in the human mind
- Fundamental economic practices
- Basic business methods
Simply implementing these concepts on a computer is insufficient for patent eligibility – there must be an inventive concept that provides “significantly more”.
The Inventive Concept Requirement
To satisfy the second step of the Alice test, software patents must demonstrate an inventive concept that:
- Improves computer functionality or efficiency
- Solves a specific technological problem in an unconventional way
- Provides concrete, measurable results beyond mere automation
- Uses the abstract idea in a manner that imposes meaningful limits on the exception
Successful Patent Prosecution Strategies
Technical Improvement Focus
The most successful software patents clearly articulate specific technical improvements. Rather than focusing on what the software accomplishes functionally, applications should emphasize how the software makes technology work better.
Examples of technical improvements include:
- Enhanced processing speed or reduced computational complexity
- Improved memory usage or data storage efficiency
- Better network performance or reduced latency
- Enhanced security measures or data protection
- Novel user interface functionality that improves human-computer interaction
Detailed Technical Descriptions
Patent applications must provide comprehensive technical descriptions that read like technical training manuals. The specification should include:
- Flowcharts and algorithmic details
- Specific implementation examples
- Hardware configurations and system architectures
- Data structures and processing methods
- Concrete examples demonstrating the invention’s operation
Multi-Level Claim Drafting
Effective software patent applications include claims at multiple levels of abstraction:
- Broad conceptual claims covering the overall system
- Narrower implementation-specific claims
- Method claims covering algorithmic processes
- Apparatus claims covering system configurations
- Fallback positions for various embodiments
Best Practices for Software Patent Applications
Pre-Filing Preparation
Before filing, inventors should:
- Conduct comprehensive prior art searches
- Clearly define the technical problem being solved
- Document specific improvements over existing solutions
- Prepare detailed technical descriptions and examples
- Consider multiple embodiments and implementations
Claim Drafting Strategies
Effective software patent claims should:
- Focus on specific technical implementations rather than abstract concepts
- Include detailed algorithmic descriptions and data processing steps
- Specify hardware configurations where applicable
- Avoid overly broad functional language
- Address potential Section 101 challenges proactively
Specification Requirements
The patent specification must:
- Provide sufficient detail for a person of ordinary skill to practice the invention
- Include concrete examples and implementation details
- Explain why the claimed invention is not merely an abstract idea
- Describe specific technical benefits and improvements
- Include appropriate drawings, flowcharts, and diagrams
How to Patent a Software Application, Mobile Application, or Novel Application in the United States
Leveraging the Patent for Business Success
Beyond enforcement, a software patent can be a valuable business asset. It can enhance your company’s valuation, attract investors, and provide opportunities for licensing or joint ventures. Additionally, a strong patent portfolio can be a critical tool in negotiations and collaborations with other technology companies.
to know more about costs read the section about cost of getting patent in US and the procedure
Cost of getting a Patent in United States (US) in 2025
“Procedure for obtaining a patent in US has the following steps: capturing your idea for creating complete invention disclosure, conducting a patentability search, drafting a patent application, filing the application, publication of application, examination, Office action, responding to objections, and grant of the patent.”
Below, we break down the 2025 USPTO Patent Filing Fees—effective January 19, 2025—for individual inventors, micro entities, small entities, and large entities.
There are two elements for the cost of getting a patent in US:
- The Patent Office (USPTO)fees or Government fees : Basic Filing Fee, Search Fee, Examination Fee etc.
- Professional fees : Patent agent/attorney fees for drafting, filing, and handling objections
Here is the short answer for the cost of filing patent in US atttoney fees and official fees
- Novelty Search ($250 to $ 400) Optional step
- Provisional patent application drafting ($400 to $600) Optional step
- Complete Patent application drafting (from $1000 to $1,500)
- Official fees or government fees for filing patent at USPTO $400 (micro entity)
- Responding to office actions (from $600 to $800) based on the number of objections received and its complexity.
- Notice of allowance (grant of patent) professional fees $100 – Official fees $258 (micro
entity)
Table for official fees or government fees for Patent filing at USPTO
| Fee Type | Large Entity | Small Entity | Micro Entity / Individuals |
|---|---|---|---|
| Basic Filing Fee | $350 | $140 | $70 |
| Search Fee | $770 | $308 | $154 |
| Examination Fee | $880 | $352 | $176 |
| Total Minimum | $2,000 | $800 | $400 |
The Steps, Procedure, Timeline and Cost for Patent in US
Note: steps highlighted in Orange color are either optional step or depends on case to case and are not mandatory to happen
| Sr. | Stages for Patent (links for more details) | Professional fees | Government Fees | Time required |
| 1 | How to go from Idea to Invention disclosure? Do I need patent agent of attorney | – | – | – |
| 2 | Signing Non-Disclosure Agreement (NDA) | – | – | 10 minutes to sign |
| 3 | Patentability / Novelty Search (Optional step) | $250 to $400 | – | 5 days |
| 4 | Drafting Complete Patent Application | $1000 to $1500 | 10 – 12 days | |
| 5 | Filing patent application | $400 | $400 (micro entity) | 1 – 2 days |
| 6 | Publication of patent application | – | – | After 12 months |
| 7 | Examination of patent application / Faster prioratised Examination is (Optional ) First time filer prioratised examination Track one prioratised examination | $300 | – Track one prioratised examination ($903) micro entity | 1-2 Years |
| 8 | Office Action and Response | $800 | – | – |
| 9 | Grant of patent / Notice of Allowance | $150 | $258 (micro entity) | Depends on pendency at USPTO |
Video : US Patent cost, procedure and timeline – steps from Idea to grant of Patent
- Indian Patent Office, Govt. of India
- Patent Facilitator for Start-ups, Startup India Govt. of India
- Bachelor’s degree in Electronics and Telecommunication engineering.
- Author of multiple books on Patents and IPR including a best-selling book on “How to patent an idea in India” which has been selected as the “Memorable Business Book of 2018” by Amazon
- Books are included in the syllabus of Educational Institutions as textbook and reference book on subject of IPR and Patents
- For over 15 years, Prasad has helped protect the intellectual property rights (IPR) of more than 1800 clients, including individuals, entrepreneurs, and educational institutes. This includes patents, trademarks, designs, and copyrights.