Here’s a question that comes up now and then: can you patent an app? Most mobile application owners usually ask whether they should patent an app, but they never really stop and question if a mobile app can be patented in the first place. However, this is something that they should seriously consider before launching their application in the app store.
Decent software applications have usually been the products of long-term labor. Building an app requires creators to develop a mobile app idea and debate its merits before moving on to execution. Next, it requires identifying product-market fit to see if it solves a problem for which people are looking for a solution. And even when it has hit the market, it requires multiple iterations before anyone can be proud of the final product. Sometimes, that product happens to be something quite revolutionary.
Understandably, software and application owners get antsy at thinking that someone might be able to copy all the hard work they’ve put into their digital products. So, securing patent protection for an app is not crazy.
This post will discuss questions like: Is it worth patenting an app? Under what conditions and how much does it cost? Most importantly, we will discuss the question, can you patent an app?
Let’s take a look.
What Is a Patent?
The term “patent,” in the legal sense, refers to the right granted to an inventor by the respective government authority. It grants app inventors the right to exclude others from using their invention for a while.
A patent is part of intellectual property law, which also covers copyright and trademark laws. However, it is not to be confused with those two (they all have their own independent legal definition). So, for example, you might trademark your brand or copyright a book you write, but these legal options do not grant a patent over a brand or a book. Similarly, you need to ensure that your mobile app patent protects your app from copyright infringement.
Under the United States patent law, there are three different types of patents when it comes to inventions. To be granted one, you must meet the criteria of the statutory law. These invention patents are:
Utility Patents: The most common type of patent. These are granted to new machines, chemicals, and processes.
Design Patents: These are granted to protect a manufactured object’s unique appearance or design, such as ornamentation or any overall design aspects of the object.
Plant Patents: Granted for new plant varieties through asexual reproduction; this includes hybrids.
From this, it can be deduced that mobile app developers will likely look at a utility patent. But let’s dig further to see if mobile applications meet the same criteria and are patent eligible.
Patent Eligibility: What Makes an App Patentable?
Yes, you can patent a mobile app. One of the key things that the Patent Office will look at when they receive a request for an app is whether other apps substantially similar to your web or mobile app have already been patented. Therefore, they suggest you begin with patent searches for software patents as your first step. This can be done on the USPTO Full-Text and Image Database (PatFT).
They suggest starting the application process by brainstorming keywords related to the purpose, use, and composition of your mobile app ideas. Afterward, you will have to do a professional software patent search in the Index to the U.S. Patent Classification; there, you will find potential classes/subclasses. Subsequently, you will have to determine the relevancy of those classes/subclasses using the Classification Schedule in the Manual of Classification.
Essentially, for a mobile app invention to be granted a patent, it should have clearly patentable features. That is, they can’t be deemed an “abstract idea,” so those features must be new, and they shouldn’t have been obvious to skilled app developers at the time of their creation. The patent office will check whether your app uses previously patented, used, or published methods and processes. If so, you’re probably not getting a patent.
You should note that, even if you’re successful with getting app patents, this doesn’t prevent a company from taking legal action against you for patent infringement. This has been known to happen, perhaps where an official patent shouldn’t have been granted.
Of course, different jurisdictions will have different rules for patenting a mobile app, so a knowledgeable law firm can be extremely helpful in your patent search process. In addition, there are different rules for international filings. For example, stricter limits are placed on the patenting of software-based inventions in Europe.
They make it necessary that the claimed invention provide a technical solution to a technical problem. For example, it might be more difficult to patent app ideas for a game app as this probably wouldn’t be considered a “technical problem.” However, something like how to edit and store your photos would be considered a technical problem.
Why Patent Applications?
The main goal of patenting an app idea is to prevent other companies from being able to copy and profit from your invention. So, is it worth it to patent an app idea? Well, let’s consider:
Imagine a scenario where you had an app idea and maybe even built a prototype of your web or mobile application. You decide that this is truly unique and disruptive, so perhaps you should patent it. What you should consider are things like:
- How much does an app patent cost?
- Is this app idea popular enough to justify the cost?
- Do I have the time it takes to go through the patent application process?
Consider that a typical patent issuing process can take two to five years! Many apps have grown and been sold to large companies during that time. Additionally, you could waste a lot of time and money pursuing an app idea patent on something that turns out to have no traction in the market anyway.
Billionaire Shark Tank entrepreneur Mark Cuban has a lot to say about patenting any kind of software. He strongly advocates for patent reforms and the removal of patents for software. He argues that companies should embrace competition without fear of being copied. After all, not everyone can execute a complex process like development successfully, and restrictive measures like patents may slow innovation.
Remember that you’ll be using your valuable time if you decide to file a patent, so make wise choices. Cuban suggests that your time may be better spent successfully executing your business processes.
The world of technology tends to evolve at breakneck speed. If you’re waiting five years for a patent, is your app idea likely to still be relevant by the time your patents are filed? What if your app is no longer in business? If you’re a startup, what if you pivot, as many startups are prone to do? Remember that you will need to pay a maintenance fee every four years for your patent. These are all things worth considering before going through the legal process to get that patent.
How Much Does it Cost to Patent an App?
Now that you know the patent process can take up to five years of your time, you also need to consider how much a patent will cost your organization before you decide to pursue one. As an app inventor, you might feel a certain amount of pride in securing a patent, but a patent does not indicate your app’s success or potential.
There are two types of patents you can file for, provisional and non-provisional. We will explain the nuances of these patents in more detail later. However, what you need to know now is how much they cost. Provisional patents can cost anywhere between two and five thousand dollars and only last temporarily. A non-provisional patent could cost anywhere from ten to fifteen thousand dollars.
In addition, once the patent examiner grants the patent, you will have to pay a one thousand dollar issue fee, plus maintenance costs every four years that get progressively more expensive over time. These costs are not even considering the cost of hiring legal representation to help you file the appropriate paperwork and navigate the complexities of this process. Of course, legal costs will also be in the thousands of dollars.
All told, you could easily spend over thirty thousand dollars to secure a patent for your application. Take the time to consider if your application needs to be patented. You might spend a lot of time and money only to discover that your app idea is not patentable and that a patent doesn’t do your business much good anyways.
However, focusing solely on the expenses can obscure the potential monetary benefits, such as making money by licensing your patent. By licensing, you permit another company to produce and sell your patented invention in exchange for royalties, which could generate substantial revenue over time. This arrangement not only allows you to leverage the expertise and resources of established companies but also opens up opportunities for collaboration and further innovation. Moreover, when you license your patent, your invention gets increased exposure and market reach, as it may be introduced to new markets and customer segments.
How to Patent Your App
Okay, so you’ve considered the pros and cons of patenting and have decided to go ahead with filing a patent for your app idea. After consulting with patent attorneys, you’ve concluded that your mobile app is a popular invention in a market ripe for disruption, and you’re confident that a patent is a good move for your organization.
Your next question is, how do I go about patenting my app? First, you’ll have to pass the “novelty test,” which Angelo Firenze described as the ability of software to solve a problem and do it in a novel way. This can be done by using new technologies or existing ones in new ways.
You also need to pass those tests of not being an abstract idea and being non-obvious to skilled web and mobile app developers. So if you meet those criteria and you’ve begun with that search of existing patents and determined that there are no others like it already, this would be the first step.
Finding a software patent attorney who specializes in intellectual property to help you is key. However, this is going to add more cost to the whole process. It is possible to file them yourself, particularly a provisional application, but again, it’s a matter of time and money.
In the United States, you need to know a thing or two about patents. In particular, in the case of patent applications, they must be filed before any public disclosure and before it is marketed to customers. So think about if your app works in such a unique, disruptive manner as to invest significant time and financial resources pursuing a patent before the product has even been marketed to consumers.
Filing Provisional and Non-Provisional Patent Applications
You can file a provisional patent application as an alternative to a formal patent claim. We’d venture to say that this is what most web and mobile apps begin with because it grants them a year to build and refine their MVP. This gives them time to decide whether a product will be a success before going ahead and filing for a full and much more expensive patent.
The provisional patent application is less demanding than the full non-provisional application, although it will still take a bit of time. You should also note that it doesn’t grant you full patent rights, although you have the right to use the phrase patent pending. A provisional patent holds your place in line and doesn’t allow other companies or individuals to file for a patent of the same idea.
From then, you have 12 months to file for a Non-provisional Patent Application; otherwise, your original filing date will be lost, allowing competitors to use your ideas. This patent filing is very comprehensive and costly. Honestly, if you’re at this point, we’d recommend you have a skilled attorney helping you through it. These lawyers have the experience to prepare and file documentation that is more likely to be accepted.
Can I Patent the Code?
If you can patent your entire app idea, surely you can patent the underlying code, right? Wrong. The code is not patentable. A patent will only protect how your application interacts with a server, not the underlying code. However, software code can be copyrighted with the copyright division of the Trademark Office of the USPTO.
Bearing that in mind, if you have a copyright and a trademark for your app, you might not need to have a patent as well. There is only so much protection you can secure for your ideas, and at a certain point, a patent just becomes unnecessary.
Trademarks and copyrights are both inexpensive alternatives to patents. However, they only cover certain aspects of your idea. For example, a trademark protects your imagery, logo, design, branding, company name, etc. A copyright protects your code and User Interface. Copyright will only protect your app if another person or company copies your copyrighted work completely.
Can You Patent an App?: Final thoughts
Yes, you can. There isn’t a straightforward answer as to whether or not you should patent your app, but remember that you can do so. Every app has a different set of circumstances, and, as indicated by Mark Cuban, there are some very valid reasons why you might choose not to patent your app idea. Choosing to do so or not is, after all, a strategic decision.
The best way to protect your app idea and IP is to work with a reputable and skilled mobile app development company. If you have doubts about the company you are speaking with, you might want to find another development company before divulging any sensitive information. You can also use non-disclosure agreements to provide a little bit of protection for your business.
If you decide to go ahead, patents can be somewhat complex in the software world, so be prepared for a lot of time and money to go into it; this is particularly true if you want to protect your app from copyright infringement. We recommend you find a good patent attorney and take it from there. The question is not, can you patent an app, but if you should do so.