Asked in Copyright and Patents (Intellectual Property)

Q: Hi, I am based in South Africa and from what I have learnt, Software cannot be patented or is this only in South Africa

I'm working on creating a new digital file type that does some unique things but I would like to know if there is a chance for this file type to be patented? If so how do I go about it?

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
  • Patents Lawyer
  • Chapel Hill, NC

A: I do not know the rules in South Africa. Software can be patented in the United States but normally the patent is on how the software makes the computer or related equipment do their jobs better. A new digital file type may fall under this category.

It is much harder than it used to be to seek patents on gathering information, processing the information in conventional ways, and then displaying the information. While those steps may be part of an innovative change to a business process, it is rare that this is an invention as defined somewhat narrowly under US law.

This is a very nuanced area of law and you would need help from someone that is familiar with this area.

But a great place to start is the guidance provided to the examiners which is posted by the USPTO here --

It would be smart to do so searching of US patents. You can look at published US patent applications too but some may be dead on arrival when they get examined so they may give you false hope. My slides at may help teach you some tricks.

I hope that this helps.

Kevin E Flynn

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