Can You Patent an App and How to Do It? – Tips For Beginners
January 7, 2021
Ideas have the highest value in the digital era. Nothing disappoints more than a realization that your web or mobile app has become a victim of a copycat. Can you patent an app and protect it? The good news is that yes, you can, but first, you should understand what it really means. Here you’ll find a brief overview of how to patent an app!
It might be a tempting idea to patent an app. After all, the market is ruthless and copycats won’t hesitate to make an app exactly like yours if they sense the potential for profit. Feeling protective over an idea is understandable. However, the app idea has to be truly novel to qualify for a patent.
Below you will find the basic information on how to patent an app. Remember the law might be different in your country of origin. Check with your local government for the most accurate guidelines.
Can You Patent an App?
The short answer to the question of “can you patent an app” is: yes, you can. The most important aspect of getting a patent for an app is the novelty: just because you can patent an app in general, that does not mean that your app is eligible for a patent.
Before you check how to patent your app, think about the app’s potential. Does it bring unique value to the market? Is it something that hasn’t been done before? Analyze your app idea to identify its novel features before applying for an app patent. Our guide on how to develop an app idea might come in handy.
What Is an App Patent?
App patent is considered to be the same as patent for software because mobile and web apps are pieces of software. However, some aspects of your app do not qualify for a patent. For example, you can’t patent the code of your app. That’s not necessarily bad news – the code is by default protected by copyright laws. You don’t have to file any form to get copyright protection.
An app falls under the category of “method” or “process” in the patent application process. Methods and processes can be patented, along with machines, articles of manufacture, and compositions of matter. That means the technical processes and/or methods that your app is based upon can be patented.
Getting an app patent means that your app’s processes and methods have legal protection from being copied by competitors. Remember that patents can be sold or licensed like any other intellectual property.
Do You Need a Patent For an App?
You don’t have to patent an app to develop it and release it on the market. You should consider patenting your app if it’s a unique idea that has not been done before and that could be copied. If your idea is a general social media platform, marketplace, or an online shopping mall, then it does not qualify for a patent unless there are features that make the app stand out – the “methods” and “processes” mentioned in the previous paragraph. These could be protected by a patent.
However, you need to know that getting an app patent does not prevent anyone from copying the technical aspects of your app. It does give you a solid legal basis to seek compensation if that situation occurs. Even then, the court process can take years. Do you need a patent for an app then? It’s up to you.
Can Ideas For Apps Be Patented?
A lot of beginners are worried about the protection of their ideas. Rightfully so – it’s what can bring the most money to the pocket. So, can you patent an app idea? Unfortunately, you cannot. Ideas in general are not eligible for a patent. A patent must spell out in detail how the app will work – not how you imagine it will work.
Can you patent an app concept? Once again, you need to show how it works. It needs to be realistic and attainable. Vague descriptions do not qualify for a patent.
Can You Copyright an App Idea?
Similarly to the situation with an app patent, there is no effective way to copyright an app idea. Copyright laws protect intellectual property. The term “intellectual property” refers to creations such as inventions, drawings, writings, designs, symbols, names, and images. What it means is that you can copyright your app’s name but not the app or the app idea as a whole.
What are the Requirements for Patenting a Mobile App?
You can patent an app if the following criteria are met:
- the app is novel,
- the app is not just an idea, meaning there are some processes or methods used that can actually be patented,
- the app is nonobvious, meaning its innovative enough that it wouldn’t be an obvious idea to someone with experience in the field,
- the app is useful, meaning that it does work, at least in theory – that’s how you avoid patents for “revolutionary” ideas like pantyhose that don’t rip presented by someone with no experience in that area.
If your app is novel, nonobvious, has methods and processes that qualify for a patent, and it is considered useful (as in possible to execute), then you can proceed and try to get a patent for your app.
Remember that there is no such thing as an international patent. Your app patent may not be taken into consideration worldwide. That is why it’s important to seek legal advice before applying for a patent for an app.
How to Check if an App Has a Patent or Not?
There’s a great possibility that an app similar to yours already exists and that it has a patent. Before applying for a patent, you need to check whether a pre-existing patent for an app has been filed by someone else. You can do this by researching your country’s database.
In the United States, you should search for the U.S. Patent & Trademark Office (USPTO). The European equivalent is the European Patent Office (EPO). Look for keywords and see if someone has filed a patent for an app.
What is a Provisional and Non-Provisional Patent Application?
If you want to patent your app, your end-goal is the utility patent. You can obtain it in two ways:
- A provisional application alone will not get you a utility patent, but it gets you some time to develop your patent application to improve the chance of eligibility for a patent. The provisional application is a temporary placeholder that gives you the “patent pending” protection for your app. It requires you to follow up with a non-provisional application in a span of 12 months.
- A nonprovisional patent application is what you file to get a utility patent without any pre-steps.
Once you follow up on your provisional patent application with a non-provisional one, the time needed to get the utility patent is reduced.
Pros and cons of the provisional application
The main pros of the provisional application are the following:
- lower costs,
- won’t be published unless a non-provisional application is going to be filed,
- can use the term “patent-pending” upon filing.
The cons are:
- the provisional application will not become a patent,
- expires after 12 months,
- needs the non-provisional application to become a patent and extend the protection period.
The provisional application is your friend when you’re in a hurry to present your app to the investors but still want to protect it. It isn’t as costly as the non-provisional application and allows you to make changes to the app. This is especially important to startups that rely on the agile development process where every iteration can bring new features to the app.
Pros of non-provisional application
The non-provisional application has some major perks when compared to the provisional application:
- published in about 18 months since filing,
- can become a patent in 2-4 years,
- considered a priority for the patent office and may become a patent even sooner of the provisional application isn’t filed,
- can use the term “patent-pending” upon filing.
If you want to skip the provisional application and go straight to the non-provisional application, remember that your app has to be developed to the state that allows you to present its specifications and claims. In other words, don’t think of it if the app isn’t ready.
The non-provisional application has two major flaws – the cost and the time it takes. You need to decide whether or not you’re ready for a costly process that can take up even 4 years.
What is the total cost required to file for a patent?
The cost of an app patent varies depending on your location and the type of application you choose. There are a few steps in the patent application process that require a fee. In the United States, the cost can amount to $5000 based on the USPTO listing. In the European Union, the total cost can grow to €6100 according to the EPO FAQ. These numbers do not include the fees of your legal team. Having a lawyer is not a necessity but it does help greatly with the application process.
The Alternatives to App Patents
After reading the entire article, you may feel discouraged from applying for a patent. That doesn’t mean your app is exposed to the vultures. You can still protect your app without an app patent.
Consider the following options as alternatives to app patent:
- Trademark – Although it doesn’t protect your app as a whole, a trademark is a safeguard to the key elements of your app: name, logo, advertising, designs, titles. Each element requires a separate trademark.
- Non-Disclosure Agreement (NDA) – It’s a type of legally binding agreement that prohibits everyone who works on your app from sharing information about it with anyone. If they break the agreement, you could file a lawsuit against them. Make sure that your employees agree to this before they start working on your app.
- Non-Compete Agreement (NCA) – The type of agreement that prohibits your employees (coders, designers, contractors) from working directly or indirectly with a competitor from the relevant field. Usually, the NCA covers the time an employee spends working on your app and about 6 to 12 months after they’ve done their job.
Summary
Even though it is not necessary to patent an app to launch it, app patents are an important factor in getting ahead of the competition on the market. No one wants to see their original app ideas making money for other people. You can easily check if a patent has been filed previously in the databases available in your country. App patents are crucial for novel features of an app. An app has to have unique methods or processes to be considered eligible for a patent. App ideas cannot get a patent. Before applying for a patent for an app, you need to decide if you want the provisional or non-provisional application process. The first one is considered a warm-up and is useful when your app idea isn’t ready yet. The second requires very good preparation but it does lead directly to obtaining a patent. Both are very different in terms of costs. You can consider different ways of protecting your app like a trademark, NDAs, and NCAs. All of them make it harder for copycats to steal your app idea.
Good luck inventing!
Read more about mobile app development best practices on our blog:
January 7, 2021
