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Apps: Can They Be Patented or Copyrighted?

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Mobile applications can be the cornerstone of a company’s business model. They must be continuously monitored, improved upon, and invested into to be kept running efficiently. Equally as important, business owners and managers must remember that all that work and investing in app creation is regarded as intellectual property. As such, it is imperative that these assets be protected legally at all costs, but can an app be patented or copywritten? Yes, it can!

The best way to patent your app is to understand the United States Patent and Trademark Office (USPTO) rules. The USPTO provides criteria that will help you determine if your app is eligible for a patent. It is also prudent to do a patent search to verify the originality of your app, less you come across an idea or concept that is already taken and filed.

The USPTO will also inspect your app to determine if its interface is systematically successful in operation and function ability. 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.

It is also worth mentioning that choosing the right patent is also an important step in this process. 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 assess the conditions that will ultimately determine your app's success. During this year, you can apply for a full patent – which is called a non-provisional patent application. With this application, you may keep the PPA's filing date. However, some app developers choose open source licenses. With an open-source license, you can use your app if it follows certain conditions. Unfortunately, this provides you with very few protections, so generally, it is more advantageous to file for the original patent.

Patent Requirements

Before you start the process of applying for a patent for your app, it's important to have a firm understanding of what a patent is in essence. Applications can be patented if they meet these three requirements from the USPTO:

  • The app is novel or new
  • The app is patent-eligible – essentially, it is not an abstract idea
  • The patent is non-obvious - This means creating your app would not have been obvious to experts in its field. To qualify as non-obvious, an app must be inventive enough that someone with skills in the industry would not find it to be obvious. An application could be rejected based on this qualification if the app combines inventions that already exist or is a variation of a pre-existing idea. Rearranging or combining technologies or processes would be obvious, so an app that uses these methods would not be eligible for patent protection.

To qualify as novel or new, the USPTO will look at your app to determine whether it has been published or patented in the past. If it has been, you may lose the option to apply for patent protection.

The most primary obstacle to overcome is whether, or not, your application is abstract enough. The Supreme Court case Alice Corp. v. CLS Banks established a two-step test for abstraction:

  • Does your patent claim an abstract idea? For example, an algorithm or a general principle.
  • Does your patent contain an element that could be considered an inventive or novel concept?
  • Additionally, revisiting the question of the obviousness of the application.

If the answer to all these questions is no, your app can be patented so long as it is also novel and non-obvious, is completely new, and does not copy other apps' elements.

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
  • Networking

If you would like to know more about the patenting process, give us a call today!

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