For free initial consultation, call (858) 674-6177.
Mr. Himelstein is a San Diego attorney who helps clients to provide
legal protection for their intellectual property associated with the
internet and computer software and hardware and assists them in
general business matters.
The following contains information on patents and the legal protection of web sites and computer software using patents.
A patent protects a new and useful process, machine, manufacture or composition of matter or a new and useful improvement of a process, machine, article of manufacture or composition of matter. Depending on how it is claimed, aspects or specific sections of a web site or of computer software may be eligible for patenting as a process (a sequence of steps) patent; they may also be contained in a machine as it executes on a computer; and may be an article of manufacture, when the software is contained on floppy disks, CD-ROM, DVD, system memory, etc. The invention must be useful, novel, and unobvious. Useful means that the invention must actually have some utility. Thus just an idea without a practical application will not qualify. Indeed, it is the implementation which is patentable, not the idea itself. Novel means that it cannot have been previously known. An application will be rejected if each and every element in the claim can be found in a single prior art reference. Unobvious means that it must be sufficiently different from similar inventions. An application will be rejected if the invention claimed in the patent is considered obvious "to a person having ordinary skill in the art." In addition there must be adequate disclosure. Unlike copyright protection, patent protection requires registration with the US Patent and Trademark office. If filed on or after June 8, 1995, a utility patent is granted a term beginning with the date of the grant and usually ends 20 years from the date you first applied for the patent subject to payment of appropriate maintenance fees.
The following are specifically excluded from protection under patent law: ideas, laws of nature, scientific principals, mental steps, mathematical algorithms, and printed matter. Deciding under which conditions an invention is proper subject matter and is therefore patentable or is not proper subject matter and is not patentable can be very difficult. For example, one of the complexities dealt with is as follows: If the software embodies an idea, a law of nature or a mathematical formula, the patent application is rejected when there is an attempt to foreclose the general use of the idea, the law of nature or the formula. If the software containing the idea, law or formula is instead applied to a particular machine, it may be acceptable for patenting. In this area and others it is sometimes difficult to draw the line between concepts.
In addition one must consider other issues. Processing a patent application is time consuming and can be costly. The protection obtained may protect the method claimed, but not other methods for accomplishing the same purpose. However, the possession of a patent could deter others from developing inventions which have the possibility of infringing. Some companies obtain significant revenue from licensing patent rights. A patent can prevent others from exploiting their own, independently created, invention, if it infringes on your patent. Each invention must be considered on its own unique facts.
Please see my sub page on Internet law for additional information on patents.
The legal information contained above is informational in nature and cannot be considered legal advice. Every situation has its own factual context and cannot be judged without that context.
For free initial consultation call (858) 674-6177.
This web site is a work in progress. Some parts are knowingly incomplete; other parts are known to need revisions. Certainly, the future will reveal the need for further additions and revisions.
Last update of this sub-page May 3, 2006 by David B. Himelstein.
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