Can you patent a website?

Like inventions that are physical (such as a new design for a pen), a website reflects the effort, thought, and design of the person who creates it. Often, websites are unique and distinct from other websites due to their design, features, or capabilities. Due to the similarities between a website and tangible inventions, one may ask, “can I patent a website?”

The simple answer to this question is that generally, an inventor cannot patent a website in its entirety. However, certain aspects of the website can be patented, and the intellectual property contained within the website can be protected through means other than obtaining a patent.

            Unlike a single physical product, a website makes use of several different elements to present itself, including but not limited to, the internet, a domain, and software used to generate the “text, sounds, images, and video displayed” on the website (1). One aspect of a website that can be patented using a utility patent is that of unique software used for a feature on the website. For example, a software which is used on the website to accept a new type of payment system, such as Amazon’s “One Click Checkout” could be patented if it is satisfies the requirements of a normal patent (useful, unique, and non-obvious). (1).

            In addition to a single useful feature of the website, the entirety of the website can be patented in rare circumstances through the use of a design patent. Unlike a utility patent, a design patent would protect the unique aesthetic nature of the website. Importantly, an inventor would only be able to obtain such a design patent if the aesthetic design of the website can be proven unique.

            A litmus test that inventors can use to determine whether a certain aspect of their website is patentable is to write down features (which would be claims in a patent application) that distinguish features of their websites from other existing websites. These features could be described, diagramed, or drawn to demonstrate their unique characteristics. In addition to being distinct, an inventor must show that the features of the website merit protection by the United States Patent and Trademark Office (USPTO).

            Other means by which an inventor can secure their intellectual property rights, with respect to their website, include trademarks, copyrights, and trade secrets. (1). First, a trademark can be used to protect the website brand, such as “Amazon” from being used by other websites. Second, a copyright can be used to protect any of the creative portions of the website including graphics or designs. Lastly, an inventor could maintain confidentiality of certain features, such as backend software, by not disclosing the design of those features to third parties through non-disclosure agreements. However, this protection is only as good as the inventor’s ability to keep that secret concealed from third parties, which is challenging given the nature of the internet.

 

Sources
  1. https://legalvision.com.au/can-i-patent-a-website/

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