An algorithm is a procedure where a finite set of instructions is used for solving a problem or performing a computation.
Algorithms are widely used in most technologies today in industries ranging from healthcare, telecommunications, retail, and even in the world of finance. Some popular examples of algorithms include tracking a location using GPS, facial recognition to unlock your phone, recommendations on music, video, and online shopping platforms, and page ranking on a search engine. Even physical products like refrigerators, microwave ovens, or washing machines are programmed using algorithms. In today’s digital world, technologies such as artificial intelligence are pervasive and making a big impact on society, even when they are not tied to physical products like autonomous cars, drones, or robots.
The patent system promotes innovation through the grant of territorial exclusive rights for a limited term with a limited scope, as a reward to inventors for the time, effort, and ingenuity invested in creating new products and processes.
There are many criteria to evaluate patentability such as – subject matter eligibility, novelty, utility, enablement, and non-obviousness and/or inventive step. Of course, algorithms are subject to all the other criteria just like any other subject matter, but let’s focus on the first criteria, which is- subject matter eligibility.
Since patents are territorial, patent laws vary from country to country, so the answer to the question “can you patent an algorithm” doesn’t have an answer that is country-agnostic.
In this post, since we cannot cover each and every criteria as well as each and every country, let’s look at it from the lens of subject matter eligibility in patent law as practiced in the US as well as in India.
If a patent claim includes a few steps from an algorithm, but when the claim is considered as a whole, produces an Improvement in the Functioning of a Computer or an Improvement to Other Technology or Technical Field, the claim as a whole is patentable. It is important to keep in mind that an improvement in mathematics as such, an economic practice, etc on its own (e.g., a recited fundamental economic concept) is not an improvement in technology. For example, simply providing a trader with more information to facilitate market trades, which improves the business process of market trading but does not improve computers or technology, is not patentable on its own. In addition, applying steps from an algorithm to affect a Particular Treatment or Prophylaxis for a Disease or Medical Condition also makes the claim as a whole patentable. Thus, even if a patent claim recites an algorithm such as a mathematical concept, economic practice, or mental process, if it leads to an Improvement in the Functioning of a Computer or an Improvement to Other Technology or Technical Field, or affects a Particular Treatment or Prophylaxis for a Disease or Medical Condition, It is patentable in the US.
In India, a patent claim that includes an algorithm is patentable if it produces a technical effect. “Technical Effect is defined as a solution to a technical problem, which the invention is taken as a whole, tends to overcome. A few general examples of technical effects are as follows:
a) Higher speed
b) Reduced hard-disk access time
c) More economical use of memory
d) More efficient database search strategy
e) More effective data compression techniques
f) Improved user interface
g) Better control of a robotic arm
h) Improved reception/transmission of a radio signal.
A contribution to the state of art, in any field of technology, is technical advancement. Hence, in order to patent an algorithm in India, the claim has to include all steps that as a whole produce a technical effect. Further, the specification has to provide examples and experimental data to provide evidence for technical effects for the claim as a whole, such as Higher speed, Reduced hard-disk access time, More economical use of memory, More efficient database search strategy, More effective data compression techniques, etc.
If you have invented an algorithm that you would like to patent, please write to us at ip@myipstrategy.com