I hear the same thing all too often from software companies, startups in particular. "Our code is going to change, so we decided not to get a patent on it", or "we are still iterating versions of our software so we decided to wait to patent it". This is a basic misunderstanding about software patents. I hear this or some similar statement from many software startups.
First, the software code is not patented, and is not the subject matter of the patent. The system and method of how the software operates is what is patented. Typically the software engineer has a particular way of implementing the software code, and the characteristics of the way the code operates in the system are unique. My job is to work with the engineer and capture all of the characteristics of the implementation in the broadest way possible in the patent.
Yes, software is patentable, and should be patented at the moment of conception and implementation as the basic concept of the problem the engineer is trying to solve is the patentable subject matter.
What is the motivation for getting a software patent?
Here are a few facts from a Pitchbook Analysis of startups with patents:
From 2011-2020, about 58% of venture capital went to startups with patents or pending patent applications.
In those same years, 80% of VC went to venture-growth stage startups, suggesting that the later you are in the fundraising process, the more important patents become.
A patent isn’t just good for landing VC deals. It can impact your deal size too. On average, early-stage startups with a patent earn 73% more capital, late-stage startups earn 71% more capital, and venture-growth stage startups earn 46% more capital.
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