By Michael Meyer, USPTO-Registered Patent Attorney | Updated 2026
Software patents are among the most contested areas of U.S. patent law. Developers and tech founders frequently hear conflicting things: "you can't patent software anymore" on one side, and "Amazon patented one-click checkout" on the other. The reality is more nuanced than either claim.
Yes, you can still patent software in the United States. But the legal standard changed significantly after the Supreme Court's 2014 decision in Alice Corp. v. CLS Bank International, and the way claims are drafted now determines whether a software patent lives or dies at the USPTO. This guide explains the current legal framework, what kinds of software qualify, what doesn't, and how a well-drafted application gives your software invention its best chance of protection.
Table of Contents
- Can You Patent Software? The Short Answer
- The Alice Two-Step Test: How the USPTO Evaluates Software Patents
- What Software Qualifies for a Patent
- What Software Does NOT Qualify
- Key Post-Alice Cases That Define the Boundaries
- How Claim Drafting Determines Whether Your Patent Survives
- Software Copyright vs. Software Patent: Which Do You Need?
- Software Patent Costs and Timeline
- The Software Patent Application Process
- Frequently Asked Questions
1. Can You Patent Software? The Short Answer
Yes — software can be patented in the United States. The USPTO grants software patents every day. But since the Supreme Court's Alice decision in 2014, the path to a granted software patent is significantly narrower than it was in the 1990s and 2000s, and the drafting of the application is more critical than ever.
The core legal question is no longer just "is this novel and non-obvious?" — it's "is this the kind of thing that can be patented at all?" That threshold question is answered by 35 U.S.C. § 101, which defines patentable subject matter, and by the framework the Supreme Court established in Alice to apply it to software and computer-implemented inventions.
Software that merely automates a known human process, applies an abstract concept using a generic computer, or describes a business method implemented in software faces very high rejection rates at the USPTO. Software that improves computer functionality, solves a technical problem in an unconventional way, or implements a specific technical process that produces a concrete, technical result has a meaningful path to patent protection.
The single most important thing to understand about software patents post-Alice: the question is not whether your invention involves software. The question is whether what you're claiming is directed to an abstract idea — and if so, whether your claims add something "significantly more" than that abstract idea. How your patent attorney writes the claims is often the difference between approval and rejection.
2. The Alice Two-Step Test: How the USPTO Evaluates Software Patents
In Alice Corp. v. CLS Bank International (2014), the Supreme Court established a two-step framework — now called the Alice/Mayo test — that examiners apply to every software and computer-implemented invention under 35 U.S.C. § 101. For a complete deep-dive on this framework, see our dedicated guide: Alice and Patent Eligibility: What Inventors Need to Know.
Step 1 — Is the claim directed to an abstract idea?
The examiner first asks whether the claim is directed to one of three ineligible categories: a law of nature, a natural phenomenon, or an abstract idea. For software, it's almost always the abstract idea question that matters.
Abstract ideas include mathematical concepts (formulas, algorithms, calculations), certain methods of organizing human activity (fundamental economic practices, commercial interactions, legal activity), and mental processes (concepts performed in the human mind). If the examiner concludes the claim is directed to an abstract idea, it moves to Step 2. If not, the claim is patent eligible and the analysis stops — a favorable outcome.
Step 2 — Does the claim add "significantly more" than the abstract idea?
If the claim is directed to an abstract idea, the examiner asks whether it contains additional elements that amount to "significantly more" than the abstract idea itself. The additional elements cannot be:
- Generic computer components performing their basic functions (a processor, memory, a display)
- Well-understood, routine, or conventional activity in the relevant field
- A simple instruction to "apply it" using a computer
To pass Step 2, the additional elements must either:
- Improve the functioning of the computer itself
- Improve another technology or technical field
- Apply the abstract idea in a meaningful way that is more than a routine or conventional application
- Include unconventional steps that confine the claim to a particular application
| Alice Step | The Question | If YES | If NO |
|---|---|---|---|
| Step 1 | Is the claim directed to an abstract idea, law of nature, or natural phenomenon? | Proceed to Step 2 | Patent eligible — analysis ends |
| Step 2 | Do additional claim elements add "significantly more" than the abstract idea? | Patent eligible | Not patent eligible — claim rejected under § 101 |
3. What Software Qualifies for a Patent
Software that has a meaningful path to patent protection post-Alice generally falls into one of these categories:
Improvements to computer functionality
Software that makes computers work better — faster processing, reduced memory usage, improved data throughput, more efficient execution of computations — tends to survive Alice scrutiny. The key is that the improvement is to the computer itself, not just using a computer to do something faster.
Example: A novel data compression algorithm that achieves a specific compression ratio using fewer computational steps than prior methods — protectable as a technical improvement to how data is processed.
Solutions to technical problems rooted in computer technology
Software that solves a problem that exists specifically because of computer technology — not a general human problem merely implemented on a computer — tends to qualify.
Example: A method for detecting and correcting data packet loss in real-time video streaming that addresses the specific technical challenge of network latency — protectable as a solution to a technical problem unique to networked computing.
Specific, unconventional technical implementations
Software that implements even a known concept using a specific, unconventional technical arrangement of components can qualify — if the arrangement itself is non-obvious and not merely routine.
Example: An individually customizable content filtering system installed at a specific network location rather than at each individual device — the unconventional placement and arrangement made this patentable in BASCOM Global Internet Services v. AT&T Mobility (2016).
Specific technical processes with concrete, technological results
Software that performs a defined sequence of steps producing a concrete, technological result — not just an abstract outcome — can qualify.
Example: Automated lip-sync animation that uses specific rules derived from speech data to control phoneme timing in 3D character animation — patentable as a specific technical process that replaced subjective human judgment with an objective, automated system (McRO v. Bandai Namco, 2016).
4. What Software Does NOT Qualify
The following categories of software face near-certain rejection under § 101 in the current legal environment:
- "Do it on a computer" implementations — taking a known human process (calculating interest, managing escrow, organizing data alphabetically) and simply running it on a computer does not create patent-eligible subject matter. This was the core holding of Alice itself
- Abstract mathematical algorithms without technical application — a formula or algorithm claimed in isolation, or applied only to produce an abstract result, is not patentable
- Fundamental economic and commercial practices implemented in software — intermediated settlement, risk hedging, advertising methods, and similar fundamental business concepts implemented in software consistently fail § 101
- Generic AI or machine learning claims — simply adding "using artificial intelligence" or "using machine learning" to a claim does not overcome Alice. The specific technical implementation of the AI/ML must be claimed with particularity
- User interface improvements that are purely aesthetic — visual display changes without a corresponding technical improvement to how the interface functions
- Software that merely organizes or presents information — collecting, storing, and displaying data without a specific technical improvement in how the data is processed
5. Key Post-Alice Cases That Define the Boundaries
The Federal Circuit — the court with exclusive jurisdiction over patent appeals — has issued dozens of decisions applying Alice since 2014. These cases are the most useful guide to where the lines are drawn:
| Case | Year | Outcome | Why It Matters |
|---|---|---|---|
| Alice Corp. v. CLS Bank | 2014 | ❌ Not eligible | Established the two-step framework. Intermediated financial settlement on a computer = abstract idea |
| Enfish v. Microsoft | 2016 | ✅ Eligible | A self-referential database table that improved how the computer stored and retrieved data = improvement to computer functionality itself |
| McRO v. Bandai Namco | 2016 | ✅ Eligible | Automated lip-sync animation using specific rules = specific technical process replacing human judgment, not an abstract idea |
| BASCOM v. AT&T | 2016 | ✅ Eligible | Content filtering at a specific network location = unconventional arrangement of conventional components satisfies Step 2 |
| Electric Power Group v. Alstom | 2016 | ❌ Not eligible | Collecting and analyzing power grid data = abstract idea; no technical improvement to the computer itself |
| Berkheimer v. HP | 2018 | Mixed | Whether something is "well-understood, routine, and conventional" is a question of fact — examiners cannot simply assert it without evidence |
| Cooperative Entertainment v. Kollective | 2025 | ✅ Eligible | Peer-to-peer content distribution network with specific topology = technical improvement to network efficiency |
The pattern across successful cases is consistent: claims directed to specific technical improvements, unconventional arrangements, or solutions to problems rooted in computer technology survive. Claims directed to using generic computers to implement abstract concepts do not.
6. How Claim Drafting Determines Whether Your Patent Survives
This is the most practically important section of this guide, and the one most relevant to your decision about whether and how to pursue a software patent.
Two companies can invent the same piece of software and file patent applications on the same day. One gets a patent; one gets rejected. The difference is almost always how the claims were drafted.
Draft toward the technical problem, not the business outcome
Claims that emphasize what the software enables a user to do (the business outcome) tend to fail. Claims that emphasize how the software achieves a technical result differently from prior systems tend to succeed. If your claim reads like a product pitch — "a system for efficiently managing customer relationships" — it will likely be rejected. If it reads like a technical specification — "a method for reducing database query latency by maintaining a self-referential index structure in which..." — it has a path through examination.
Claim the specific implementation, not the concept
The broader and more abstract the claim, the more vulnerable it is under Alice. Claiming "a method for filtering content on a computer network" will fail. Claiming the specific, unconventional technical architecture by which content is filtered — the particular arrangement of components, the specific steps in the process, the technical parameters — gives the claim something to stand on.
Tie claims to specific technical improvements
Where possible, draft claims that explicitly state the technical problem being solved and the technical improvement achieved. "A method that reduces network bandwidth consumption by X% through Y mechanism" is stronger than a claim that simply describes the method without anchoring it to a specific technical result.
Use method, system, and CRM claims
Software patents typically include three types of claims that cover the same invention from different angles: method claims (the steps performed), system claims (the apparatus that performs the steps), and computer-readable medium (CRM) claims (the instructions stored on a non-transitory medium). All three claim types should be present and properly drafted in a software patent application.
The Alice framework has made software patent drafting significantly more technical and more demanding than it was a decade ago. A patent attorney who understands both the legal framework and the underlying technology is essential — not optional. An attorney who simply describes what the software does without connecting it to the specific technical improvements and unconventional implementations is setting the application up for rejection.
7. Software Copyright vs. Software Patent: Which Do You Need?
Many software developers know that copyright protects their code automatically — but copyright and patent protect fundamentally different things, and for most commercial software, both matter.
| Feature | Software Copyright | Software Patent |
|---|---|---|
| What it protects | The specific code — the expression | The underlying method, process, or system — the function |
| Arises automatically? | Yes — upon creation of the code | No — must be applied for and granted |
| Stops competitors from? | Copying your specific code | Building the same functionality in different code |
| Duration | Life of author + 70 years | 20 years from filing date |
| Cost | Automatic (registration: $45–$200) | $4,000 – $20,000+ |
| Can competitor rewrite in different code? | Yes — copyright doesn't stop this | No — patent covers the method regardless of implementation |
The critical limitation of copyright for software: it only protects the specific code you wrote. A competitor can independently write different code that performs exactly the same function and does not infringe your copyright. A patent on the underlying method, by contrast, covers any implementation of that method — whether the infringing software is written in Python, Java, C++, or any other language.
For commercially significant software innovations, the goal is both: copyright on the code (automatic), and a patent on the underlying method or system (applied for). See our related guide: Copyright vs. Trademark vs. Patent — What's the Difference?
8. Software Patent Costs and Timeline
| Stage | Typical Range | Notes |
|---|---|---|
| Provisional application | $2,500 – $4,000 | Establishes priority date; 12-month window to file non-provisional |
| Non-provisional (attorney fees) | $4,000 – $15,000+ | Higher end for complex algorithms, AI/ML, cybersecurity |
| USPTO filing fees (small entity) | $400 – $1,600+ | Varies by number of claims and pages |
| Office action responses | $1,500 – $4,000 each | § 101 Alice rejections are common in software — budget for prosecution |
| Time to first office action | 12 – 24 months | Software/business method applications often have longer queues |
| Total time to grant | 1.5 – 3 years | Alice rejections can add prosecution rounds and time |
| Maintenance fees | $430 – $8,280 over patent life | Due at 3.5, 7.5, and 11.5 years after grant |
One important budget note specific to software patents: § 101 Alice rejections are extremely common, even for applications that ultimately get granted. Budget for at least one to two rounds of office action responses. A well-drafted initial application can reduce — but rarely eliminates — prosecution back-and-forth on eligibility. See our complete cost guide: How Much Does a Patent Cost?
9. The Software Patent Application Process
- Document your invention thoroughly. Before engaging an attorney, write out what the software does, how it works technically, what problem it solves, and why existing solutions don't solve it the same way. Flowcharts, architecture diagrams, and pseudocode are all useful starting points
- Conduct a prior art search. A patent search identifies existing patents and published applications that may affect the scope of your claims. This step helps your attorney understand the landscape and draft claims that are both novel and meaningfully broad
- File a provisional application (optional but often recommended). Locks in your priority date at lower cost while your attorney prepares the full application. Particularly important if you're about to launch, present publicly, or share the invention with potential investors. See our guide: Provisional Patents 101
- Draft and file the non-provisional application. Your attorney drafts the specification (written description), drawings (flowcharts, system diagrams), and claims. Claims must be carefully crafted to survive Alice scrutiny while providing meaningful commercial protection
- Respond to office actions. Expect at least one office action from the USPTO examiner. § 101 Alice rejections, § 102 novelty rejections, and § 103 obviousness rejections are all common. Your attorney responds with arguments and/or amended claims. For more on what to expect: How Long Does a Patent Application Take?
- Patent issues or appeal. If examination is successful, the USPTO issues a Notice of Allowance and the patent grants upon payment of the issue fee. If rejected after multiple rounds, appeals to the Patent Trial and Appeal Board (PTAB) or the Federal Circuit are available
10. Frequently Asked Questions
Are software patents worth it after Alice?
For software that represents a genuine technical innovation — not just a business process implemented on a computer — software patents remain valuable and worth pursuing. A granted software patent provides 20 years of exclusivity that copyright simply cannot offer. The key is having an attorney who understands the post-Alice landscape and drafts claims that are both eligible and commercially meaningful. Poorly drafted software patents are expensive and provide little value; well-drafted ones can define a market.
Can I patent a mobile app?
You typically cannot patent the app itself as a whole, but you can patent specific methods, processes, or systems that the app implements — if those methods are novel, non-obvious, and pass the Alice eligibility test. You may also be able to obtain design patents on the app's distinctive UI elements and screen layouts. See our dedicated guide: Can You Patent an App?
Can I patent an algorithm?
A mathematical algorithm claimed in the abstract cannot be patented. But a specific technical application of an algorithm — one that produces a concrete, technical result or improves computer functionality — can be patent eligible. The claim must be directed to the specific implementation, not the abstract mathematical concept. How the algorithm is claimed matters enormously.
Does copyright protect my software from competitors building the same thing?
No. Copyright protects your specific code from being copied. It does not stop a competitor from independently writing different code that performs a similar function. A patent on the underlying method is the only form of IP protection that covers the functionality regardless of how it's implemented.
What is a § 101 rejection and how do you overcome it?
A § 101 rejection means the examiner has concluded your claims are directed to patent-ineligible subject matter under the Alice/Mayo framework — typically that the claims are directed to an abstract idea without adding significantly more. Overcoming a § 101 rejection involves amending claims to more specifically recite the technical implementation, adding language that ties the claims to concrete technical improvements, and making arguments that distinguish the claims from the abstract idea by pointing to the specific unconventional elements. This is a specialized area of prosecution and one of the most common challenges in software patent applications. See our full guide: Alice and Patent Eligibility.
How long does a software patent last?
A granted utility patent — including software patents — lasts 20 years from the effective filing date, subject to payment of maintenance fees at 3.5, 7.5, and 11.5 years after grant. Given how quickly software technology evolves, 20 years of protection is often longer than the commercial lifespan of the underlying technology — which is part of the debate over whether software patents are appropriate. From a business perspective, the first 5–10 years of protection are typically the most commercially significant.
Have a software invention you want to protect?
Software patent applications live or die on how the claims are drafted. Michael Meyer is a USPTO-registered patent attorney who understands both the technical and legal dimensions of software patent prosecution — including how to navigate Alice rejections and build claims that hold up. He works with software developers, startups, and tech companies across Nebraska and nationwide.
Schedule a consultation — or call 402-321-7532.
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