Protecting a unique app idea is required for safeguarding it from the copycats in the marketplace as they might seek a chance to steal it. However, your app idea should be new and exclusive to be subject to protection under Intellectual Property (IP) laws. An app maker’s efforts will go in vain if it is a clone of other applications. Fortunately, IP laws – particularly patent, trademark, and copyright laws – provide robust protection for apps and developers who plan well in advance.
Utility Patent Protection
Utility patents protect inventions for a term of twenty years from filing. The good news is that apps are treated no differently than other types of software inventions and can thus be protected by utility patents. The disadvantage sometimes is that apps are treated no differently than other types of software and are therefore subject to the same undefined and poorly understood ‘abstract idea’ exception to patentability (especially in the United States) created in the case of Alice Corporation Pty. Ltd. vs. CLS Bank International. However, not all software inventions are abstract ideas, and applications on software continue to be allowed, and software patents continue to be sustained.
The patentability of apps depends partly on the nature of the invention and partly on the skill of the patent drafter. Apps that implement fundamental economic practices, merely collect and display data, or simply automate well-known processes, are the kind of inventions likely to be found to be unpatentable abstract ideas. However, apps that do something new, that cause a change in the real world, or that improve the operation of computers are the kind of inventions likely to be found to be the patentable subject matter.
Assuming that your app is a patentable subject matter, it must clear two more criteria: the app must be novel (different from what was previously known) and non-obvious (more than an obvious variation of what was previously known). You may be sufficiently familiar with the current state of the art, or you might consider a search to determine how the app differs from what was previously known and assess the chances of obtaining Patent Protection.
It usually takes more than two years to get a patent on an app and costs between $10,000 and- $15,000. An app developer must consider whether the commercial prospects for the app justify this cost and whether the anticipated life of the app will outlast the application process. Whatever the decision be, one must file the Patent Application within one year of the first public disclosure or sale of the app, and to avoid any complications, one should file before any public disclosure of the app.
Design Patent Protection
In addition to the protection of the function of an app offered by a utility patent, another type of patent – a design patent – safeguards the appearance of the app’s icon and its user interface. A design patent has a term of fifteen years from issuance and allows its owner to stop others from using an icon or interface that is confusingly similar in appearance to the patented design, seeing which a consumer would be confused.
Design patents, comprising mostly drawings of the design, are significantly less expensive than utility patents. It normally takes less than two years to get a design patent, and the total cost is often under $2,500. While the protection provided by a design patent is narrower than that provided by a utility patent, this scope is perfect for protecting an app’s icon as well as various elements of the app’s graphical user interface. These can be significant to customers and prospective customers and are often a key reason for the success of the app.
Trademark Protection extends to an app’s name, the appearance of its icon, and the appearance of its user interface.
Trademark Rights are established through the use of the mark, but an app developer can get the process started early by applying to register its marks based upon the intention to use them. Before adopting a mark, the developer should conduct a trademark clearance search. It not only helps to avoid infringement claims but also saves one from wasting time and resources in building the rights in a mark that will later have to be changed. Searching pending applications and issued registrations is relatively straightforward on most countries’ IP databases. The obvious benefits of Trademark Registration are a presumption of ownership of the mark, a presumption of the exclusive right to use the mark, and the right to use the ® symbol. A less obvious but important benefit is the fact that registration makes your mark easy for other developers to find and avoid.
Copyright safeguards the app’s code, as well as pictorial and graphic works included in the app. Copyright should be a preferred form of protection for an app developer because it is automatic and essentially free. Copyright automatically arises from the moment the app is fixed in tangible form, for instance, saved to your hard drive. Although Copyright Protection is automatic, two steps will give you the strongest possible copyright: (1) Put a copyright notice on the work, and (2) register the copyright. Copyright notice is the word ‘copyright’ or the © symbol, the name of the copyright owner, and the year the work was first published. For example, for a work first published in 2021, the notice would read © App Developer 2021. Copyright exists even without registration, but in some countries, such as the United States, registration is a prerequisite for an infringement action.
App developers should prepare an IP plan to ensure the protection of their hard work. There should be written agreements in place with parties such as employees, consultants, etc., to protect confidentiality and ownership. Before publishing the app, one should identify any patentable inventions and designs and file utility patent applications on the inventions and design patent applications on the designs. Any protectable trademarks should be identified, including the name of the app, logo, etc. Finally, a copyright notice should be included in the software code. Thus, it is easy to obtain IP Protection for your app with the help of a proper plan.