CAN I GET A PATENT IF I ALREADY MADE A WEBSITE FOR MY PRODUCT?
If your front-end technology has been fully described on your website for more than a year, you wouldn’t qualify for patent protection on the subject matter disclosed. However, the portions of your technology that have not been publicly disclosed for more than one year may be eligible for patentability. There is another factor to the equation, however – this concerns public use and public sale.
If you’ve been selling a stand-alone software product to the public for more than one year, and the back-end operations to the stand-alone are performed in the public domain (e.g., an end user’s computer), then the question as to patentability becomes a little more complex. In this scenario, you should still consider filing for patents, but with emphasis on defensive considerations in view of the new patent laws enacted in 2011 (i.e., to prevent others from obtaining a patent on back-end technology that you came up with first).
In layman’s terms, the law provides a one-year grace period to file for a patent on technology that has been made available to the public. Anything that’s been available to the public for more than one year will be hard to protect unless you’ve been keeping the technology in a ‘black box,’ protected from public discovery. Since the new patent laws went into effect, there has been an increase in patent filings covering back-end operations that have been ‘available’ to the public for more than a year, but ‘protected from public discovery’ during that period.
For example, if your company’s Software as a Service (SaaS) product is accessed by customers via a website or web portal, and has been offered for over a year, the front-end functionality of the software is not patentable. However, the back-end aspects of the product may qualify for patent protection, as long as these aspects have been protected from public discovery.
Put simply, if the only operations that are performed in the public domain (e.g., on the end user’s computer) are the front-end operations, and the back-end operations remain on, for example, your private servers, then you may still qualify for patent protection.
If you are interested in more detail related to your situation it is best to speak with an attorney.
Yuri Eliezer heads the intellectual property practice group at Founders Legal. As an entrepreneur who saw the importance of early-stage patent protection, Yuri founded SmartUp®. Clients he has served include Microsoft, Cisco, Cox, AT&T, General Electric, the Georgia Institute of Technology, and Coca-Cola.