Is it possible to patent a software to do something which can only be done in one way due to limitations well known to everyone? Here is the scenario, I want to acquire an image from a digital sensor from my web based application:

  • The browser itself cannot take images from the sensors, this is a known technical limitation
  • For that reason, you will need install a client application on the client's computer to acquire the images
  • You still want to take the image from the browser, so you will have a button on your web application which will tell the client application to acquire an image from the sensor
  • The acquired image is then uploaded to the server where it is stored

Any software developer will tell you this is the only way to do it... But what if someone patents this exact method? Is it possible? Can it be enforced and should I worry about these kind of patents?

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    I’m voting to close this question because it's much better asked on patents.stackexchange.com Commented Jul 15, 2022 at 17:25
  • 6
    That a question might be on-topic on another stack is in no way a good reason to close it on this site if it is on-topic here. This is a question about the scope of patent protection, which is certainly a legal question, and so on-topic here. It is not in my view, a request for specific legal advice, it merely asks what the law on this topic is. It does not ask what to do. Thus neither close reason suggested is valid for this question, and it should not be closed. Commented Jul 15, 2022 at 18:54

1 Answer 1


Can only be done one way and has been done - not novel; you can only think of one way to do it and don't know if it has done that way or at all, may be is patentable.

From one example it is hard to give a general answer that might apply to a case you might actually be thinking about.

One can not get a patent on something that is not novel or is obvious (using U.S. patent law concepts) or not useful.

Novelty is judged by trying to find a single reference, published before the filing date, that contains all elements of the claimed invention. An examiner can't just say "that is the way I would have solved the problem" or "everybody knows that already". This is to make the test for novelty more objective and give the applicant something tangible to argue against.

Next consider obviousness. The examiner can't just say "seems obvious to me". Besides the problem that it is far from objective, there is a strong psychological effect called "hindsight bias". Once you know a solution, it seems obvious even if you would never have come up with it independently.

To assert a rejection based on obviousness an examiner needs to find one or more references that, together, have all the elements in a claimed invention. That part is pretty objective. Then they need to argue that a (fictitious) person of ordinary skill in the art would think to combine those references to achieve the claimed invention. A POSITA knows everything that was ever published anywhere at any time in any language in the relevant field or specifically relevant to the problem from an other field and is of median/average skill in the field.

There are rare cases where the problem was never recognized and the recognition of the problem is an important part of the invention. In that case the solution might be obvious once the problem was (inventively) identified. That would still not be an obvious invention. Your example might fit into this.

In the rest-of-the-world obviousness is replaced by "having an inventive step", not exactly the same concept. And the rules of what can be considered prior art different.

A third criteria is "useful" in the U.S. It is somewhat analogous to "industrial applicability" in the rest of the world. Until about 2000 this was a trivial hurdle in the U.S. As long it was not a law of nature (abstract), something completely done in your head or a perpetual motion machine, it was probably useful.

There have been many rulings since then that have put more and more things in the "abstract" category and if it's abstract its not useful. This is the basis of the "you can't patent software" mantra. There are plenty of things that look like software that get patented but it is getting harder.

  • Might want to note that software is not patentable in most of the world
    – Dale M
    Commented Jul 15, 2022 at 21:25
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    Often said but not really true - a random example EPO allowed patent patents.google.com/patent/EP3495978A1/en They say software itself is not patentable but a useful method that works by computer steps is or some similar confusing statement Commented Jul 15, 2022 at 22:16
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    “Software per se” - no but “computer implemented inventions” - yes. In practice they are prolific at granting what look just like software patents. Commented Jul 15, 2022 at 22:35
  • Hindsight bias: I was within a group of some quite clever software engineers, when one reported he had just seen that Sun Microsystems (RIP) had got a patent for some clever technique. Within half an hour I had almost figured out what they did, but two others actually had it. All the information we had was that X must be possible because Sun had solved the problem and got a patent for it.
    – gnasher729
    Commented Jul 19, 2022 at 16:04
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    Novelty is the easier hurdle but the application must also base an obviousness test. That really needs to be more than “seems obvious to me”. Commented Jul 19, 2022 at 17:48

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