Importance of Algorithm in Software Patents

Two requirements for all patent applications are that: (1) the patent claims have a proper “written description” disclosure, and (2) “enablement” support. The written description requirement requires a patent specification to describe the claimed invention in sufficient detail to establish that the applicant had “possession”  of the claimed invention as of the application filing date.

The enablement requirement requires a determination of whether the patent specification contains sufficient information regarding the subject matter of the claims so as to “enable”  a person skilled in the art to make and use the claimed invention.

In some instances, software-based patent applications can fail to include a sufficient algorithm describing “how” the software interacts with the underlying hardware of the invention. This can lead to issues in both prosecution and litigation, creating unnecessary expense or invalidation of a related patent. Therefore, as a general rule, software-related patents should include an algorithm. 

Source: Mondaq ® Ltd

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