Can You Patent an App: Everything You Need to Know
Patenting a mobile phone application is an important part of protecting your intellectual property and allowing you to seek damage for infringement.8 min read
Why Should You Patent a Mobile App?
When asking "can you patent an app," remember that patenting a mobile phone application is an important part of protecting your intellectual property and allowing you to seek damage for infringement.
Nearly everyone has a smartphone with mobile applications. Mobile apps are one of the fasting growing segments of the software sector. This makes many people wonder if they can patent a mobile app. In most circumstances, you can. However, there are some limitations.
An app can be patented because it is part of the methods of interaction. This means it plays a part in how your smartphone functions. However, you cannot patent the computer code that runs your software. This distinction is confusing to many people.
Bringing your app to market is extremely competitive. The biggest app marketplaces today — the Apple iTunes App Store and Google Play — now offer more than 600,000 apps a piece. The iTunes App Store had about 700,000 apps and Google Play had about 675,000 as of 2012. Needless to say, getting your app noticed in such a crowded marketplace is difficult, if not impossible.
The top three patents issuers are the United States, WIPO, and Europe.
The best way to patent your app is to understand the United States Patent and Trademark Office (USPTO) rules. Criteria laid out by the USPTO will determine if your app is eligible for a patent. For example, if someone has already invented the same app, you will not qualify for a patent. You should do a patent search to make sure your mobile app idea is original.
The USPTO will also look at your app to determine if its processes produce a useful result. If your app's function is similar to an existing app, your patent will be rejected. Also understand that patents are awarded to the first person to file, not the first person to invent.
Choosing the right patent is also important. Most people trying to patent an app choose a provisional patent application (PPA). A PPA is an affordable utility patent that establishes your filing date. Your PPA should include:
- Drawings of your app
- A description of your app
- An explanation of how your app works
An approved PPA gives you patent-pending status for one year. This allows you to gauge your app's success. During this year, you can apply for a full patent. This is called a nonprovisional patent application. With it you still keep the PPA's filing date.
Some app developers choose open source licenses. With open source licensing, people can use your app if they follow certain conditions. However, this provides you with very few protections. A patent is usually a better idea.
Smartphone apps can be patented if they meet these three requirements:
- The app is novel or new
- The app is patent eligible, meaning it isn't an abstract idea
- The patent is non-obvious. This means creating your app wouldn't have been obvious to experts in its field.
The main hurdle to overcome is whether your app is an abstract idea. The Supreme Court case Alice Corp. v. CLS Banks established a two-step test for abstraction:
- Does your patent claim an abstract idea? This can include something like an algorithm or a general principle.
- Does your patent contain an element that could be considered an inventive concept?
If the answer to both these questions is no, your app can be patented as long as it is also novel and non-obvious. Novel simply means your app is completely new. It does not copy other apps' elements. The USPTO considers an invention non-obvious if it would not have been obvious to a professional in a similar field. If an invention combines other inventions or is a variation of an existing invention, it will not be non-obvious.
You will also need to file for your patent within a year of first disclosing it. The first time you reveal your app to the public, this one-year period begins.
There are also several aspects of your app that you can patent. These include:
- Server processing
- Mobile interface processing
- Interaction with the server
- Combination of mobile and server processing
- Database creation
- Outputting to a smartphone
- Presenting information on a smartphone
- Reporting feedback
- Third-party server involvement
- Interaction between devices
- Third-party mobile transaction
- Security and authentication tasks
- Data privacy
- User identification
- Data pushing
- Messaging services
Can You Patent Medical Apps?
Medical apps are more complicated. You cannot patent ideas related to natural functions. For instance, if your medical app performs a function that a human would normally do, then it probably is not available for a patent. On the other hand, if your app does something innovative, such as turning an organ scan into a three-dimensional model, a patent is possible.
Think about what your medical app does. If it's something a human medical professional could not perform, you should be able to secure a patent.
Most apps are built on at least some form of existing technology. This makes applying for a patent difficult. Before applying for a patent, do a prior art search. This is a search of existing patents that might be similar to your own. You should compare the results of your search to your app. Look for the parts of your app that are distinct. These distinct items are the parts of your app that are available to patent.
How Much Does a Patent Cost?
After inventing your app, you might want to know how much it costs to secure a patent. Patent costs can differ depending on the type of patent for which you apply.
Provisional patents can cost between $2,000 and $5,000. The cheaper application secures your filing date. The more expensive application provides more robust protections. After you've filed your provisional patent, you can release your app. Provisional patents last a year, and you can use this period to test your app's success.
You can also file for a nonprovisional patent. These can cost between $10,000 and $15,000. After you've filed your patent, it will be examined by the USPTO. This examination can take between one and three years. Your examiner will fully review your patent and search existing patents to see if your app is eligible. It's normal to have to respond to several rejections before your patent gets granted.
During the examination, you might end up paying as much as $15,000 in fees. After approval, you will pay the USPTO a $1,000 issue fee. You will also need to pay maintenance fees every four years:
- Year 4: $800
- Year 8: $1,800
- Year 12: $3,700.
All told, you can pay as much as $30,000 to secure your patent. This does not include the previously mentioned maintenance fees.
Should You Apply for a Patent?
There is some argument as to whether patenting an app is worth the effort. Mark Cuban, for example, does not believe software patents are necessary because they don't contribute to your app's success. Also, your patent only protects how your app interacts with a server, not the underlying code. Software code can only be copyrighted, not patented.
If you are thinking about applying for a patent, consider:
- Your Goal: Why are you filing for a patent? Do you want to protect your idea from theft? Are you hoping to sell your patent for a profit? These are the types of questions you need to answer to decide if filing a patent is right for you.
- Your App's Impact: Smartphone apps have very short lifespans. Most apps' viability is three years. This can be much shorter if your app is a specialty app that won't be used regularly. Consider whether your app will have a major impact on its users. If it has the potential to last more than three years, you might need a patent.
- Value: Not every app is commercially valuable. This is especially true if it's in a niche category. Apps are extremely expensive to patent. If your app will not be extremely profitable, you usually don't need a patent.
- Competition: There are hundreds of thousands of apps available. Only about the top 100 will be noticed and gain any sort of market share. How likely is it that your app will be in this top 100? If your app isn't strong enough to compete, you don't need a patent.
In addition to these factors, consider how your patent might interact with other protections. If you already have a copyright and a trademark, a patent might be unnecessary. Also, think about the amount of time it will take to patent your app and bring it to market. The time it takes to patent an app can potentially delay your long-term business plans.
Ways to Protect Your App
Patents are not the end all, be all when it comes to securing your intellectual property. In fact, there are many ways to protect your app. Alternative protections include:
- Copyright: A copyright allows you to protect your app's code and your user interface. It is cheaper than a patent. However, it only protects you if someone makes an identical copy of your app.
- Non-Disclosure Agreement: Require everyone who works on your app to sign a non-disclosure agreement (NDA). An NDA prevents people who worked on your app from sharing information with other parties. It also gives you the option to sue if they violate the NDA.
- Non-Compete Agreement: A non-compete agreement is similar to an NDA. When an employee signs a non-compete agreement, it prevents them from working for a direct competitor for a certain time after leaving your company.
- Trademark: A trademark protects the imagery associated with your app. This can include logos, designs, and even your company name. Very inexpensive, a trademark can be one of the best ways to protect your app.
- Be Careful Who You Work With: The best way to protect your app is to work with people who have good reputations. Choose developers with successful track records. Look for people who have no history of patent infringement. Trusting your team will go a long way toward protecting your app.
- Records: Document your app-making process thoroughly. Record even the smallest of details. Complete documentation will help you if you ever need to file an infringement lawsuit.
- Distribution: Be careful about how you distribute your app. Never let the development company upload your app on their own. Always have your own account, and upload the app yourself.
Can You Patent an App FAQ?
- Is it Possible to Patent My App?
Yes. While you can't patent your entire app, you can patent how it functions. The app's code is not available for patent. Instead, it must be copyrighted.
- Should I Patent My App?
It depends. Getting a patent is a long, expensive process. If your app is not likely to make enough money, or if it will have a short lifespan, a patent is not needed. However, if your app has a high commercial value, you should consider a patent.
- How Much Will a Patent Cost?
Cost varies from patent to patent. A provisional patent can be as much as $5,000. Full patents can cost up to $15,000. In total, expect to pay $30,000 before your app gets approved.
- Are There Other Forms of Protection?
Yes. Instead of a patent, you can use copyrights, trademarks, and non-disclosure agreements. These are much cheaper and might be just as effective.
- Do I Need an Attorney?
Yes. Securing a patent is difficult. It often takes several years. You might also need to overcome multiple rejections. An experienced attorney can help guide you through this process more easily.
Ask a Lawyer if You Can Patent an App
Patenting an app can be difficult if you don't have legal experience. It's easy to make a mistake along the way, possibly putting your patent at risk.
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