Have you developed a mobile application?  It is a fast-paced industry and one that many inventors and app developers alike are keen to enter. For this reason, you should consider patenting your app to ensure your intellectual property (IP) is well-protected. This article explains how to patent an app as well as your alternative protection measures if you choose not to go the patent route.

Standard Patents

To patent an app, it must be novel, inventive and have patentable subject matter. A preliminary patent search will help determine if your app is novel and whether there is anything similar already on the market.

Patentable subject matter defines what inventions are eligible for patent protection.  In general, you can protect some technical aspects of mobile apps, including:

  • server-based processing;
  • user or mobile interface-based processing;
  • the interaction between the user, mobile interface and device with the server;
  • processing information partially at the mobile interface end and partially at the server end;
  • output to a mobile device;
  • creation of a database on the server or mobile device;
  • presentation of information;
  • infographics on the mobile device;
  • messaging platforms; and
  • privacy processes.

A standard patent gives you exclusive rights to use the technical aspects you have patented for up to 20 years.

Innovation Patent

The app space is fast moving, which is why you may want to consider an innovation patent. An innovation patent is a great way to achieve quick and enforceable rights. The threshold requirement is lower for an innovation patent than it is for a standard patent because it requires an innovative step rather than an inventive step. On the other hand, an innovation patent only protects for up to eight years, unlike the 20 years a standard patent lasts for.

Deciding Whether to Patent an App

When thinking about whether to patent an app, there are some questions to ask yourself. These include:

  • what is the expected lifespan of the app;
  • will competitors be likely to use your technology in their apps;
  • what is the interest, appeal or application of the technology;
  • what is the commercial benefit of protecting your app; and
  • does the cost and timeline for a patent fit in with the business plan for launching the app?

Gaining Protection Without Patenting Your App

If your mobile app is not eligible, or not suitable, for a patent, you should think about other ways to protect your IP. Your alternative options include include:

  • trade marks;
  • copyright;
  • trade secrets; and
  • website terms of use.

Trade Marks

You should consider registering the name of your app, your app icon and the name of your brand (if it is different to the name of your app). For example, the names Angry Birds, Tinder and Uber are all registered trade marks. Their logos are also trade marked.

Trade mark registration will give you proprietary rights to use the name or logo of your app to distinguish it from competitors. Trade marking your app’s brand will allow you to protect your brand as your app grows and gains traction. Doing this early on will prevent competition from using your name and also create a high-value asset that you can sell, licence or assign if you wish.

A trade mark is arguably the most important protection available for mobile apps.

Copyright

Copyright is an automatic right that attaches to the expressed material form of your software code as well as your content, design and layout. It can protect the app in its written form (as a ‘literary work’) as well the design and graphics.

Copyright protection will exist for the life of the author plus 50 years.

Trade Secrets

The inner workings of your app, privileged employee information and confidential commercial strategies are considered trade secrets. To protect this information from competitors, you will need to use non-disclosure agreements when discussing your trade secrets with third parties.

It is also important to have a confidentiality and non-compete clause in your employment agreements, to prevent employees from disclosing trade secrets and becoming direct competitors.

Application Terms and Conditions

Application terms and conditions govern how app users use your app and set out your copyright and intellectual property rights. You can determine how users can use your content and address whether you offer a licence to use the material. For instance, you may permit users to save, copy, print and download your content for personal and educational use only. You are entitled to prohibit commercial exploitation of your website and app content.

Key Takeaways

If you have created an app with mechanisms and functionality that is novel and inventive, you should consider patenting it. But even if a patent is not the best option, that doesn’t mean you can’t protect your app. IP rights such as trade marks and copyright, as well as app terms and conditions all add value.

If you want to talk about patenting an app or otherwise protecting it, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Sophie Glover
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