Do I need the actual software to get a software patent?

I have a few general questions about software patents. 1- Do I need to have the software written already in order to get a patent (or provisional patent) or can I just get the idea protected first? Please tell me how much info I need; do I need to know at least the language it will be written in? 2- Do I need to setup an LLC to protect myself before filing for a Provisional Patent? 3- If I have an idea, and then later I found it was already in use as a computer program (although I don't know anyone that uses it), can I use it and apply it towards a patent for a Smart Phone App, which would give it additional benefits? Thanks in advance for your professional advice.

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Answered By: DANIEL NESBITT

General responses to general questions: 1- No. Software patent applications do not require that a specific written program be included in the application, although the provision of the law pertaining to disclosure of the best mode for making and using the invention may require such disclosure if the program is already written. 2- No, not required. 3- You may not be able to use the idea without risk if the later someone has already filed for intellectual property protection; the use by the later someone may also affect the patentability of the idea, perhaps even in a SP app. This is very general advice, and your situation may vary depending on the facts.

Answer Applies to: Ohio
Replied: 11/1/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Mark S. Hubert PC

No you don’t need the actual software. However you can’t patent an idea - to get a patent you must disclose how to make and use your invention. Simply stated you must have the details worked out. Probably don’t need to know the language. No need for an LLC unless you want to protected yourself from being sued personally for infringing another's patent. Converting an existing program to an iphone app may or may not be patentable. I can’t tell until I see the differences.

Answer Applies to: Oregon
Replied: 10/26/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Law Office of Kirk Buhler

No. You do not need the actual software to get a software patent. The patent office no longer requires a working unit of the invention. 1) You do not need to have the written software for a provisional or a non-provisional application. A provisional application is often filed to protect an invention while it is being developed. A non-provisional application must be filed within one year of filing the provisional application. 2) Patents are filed by individuals and not companies. You do not need an LLC to file a patent application. 3) Most patents are improvement to existing patents or products. To get a patent you must have at least one attribute that is not obvious.

Answer Applies to: California
Replied: 10/26/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Malhotra Law Firm, PLLC

1. You do not need to have the software already coded. You need enough information to enable someone of ordinary skill in the art to make and use the invention. This is called the "enablement" requirement. This is usually done by flowcharts. 2. You are not required to have an LLC. You can transfer title to a patent application at any time after it is filed or even after the patent issues. It is up to you and depends on whether you are doing activities that could generate liability. Probably not much liability is raised by patenting something, but manufacturing something or selling is a different thing. Seek counsel from a corporations attorney. 3. I am not sure I understand your question. To obtain a patent, you need to be an inventor. We are currently a first-to-invent country but in a bit less than a year and a half, we will be a first-to-file country. Transforming software to an iPhone app is probably not novel enough but there may be some significant changes to accomplish the transformation.

Answer Applies to: Washington
Replied: 10/25/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

Answered By: Barton Barton & Plotkin

You need an IP lawyer to review the specific facts and details. The answer to every one of your questions is that it depends on the facts. In general patents do not cover mere ideas. They cover tangible useful inventions. If someone has already implemented your idea into a computer program then chances are you cannot use your idea without getting a license. One thing is sure. You need to retain Ip counsel

Answer Applies to: New York
Replied: 10/25/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.