Protecting mobile apps against copycats and imitators is worthwhile since they can be lucrative, especially if you maintain in-app purchases and “freemium” business models. Fortunately, several jurisdictions allow for the patenting of apps.

Let’s say you’ve created a ground-breaking mobile app or feature. If so, you must eventually decide if it makes sense from a business standpoint to pursue patentability or whether another kind of intellectual property (IP) protection, such as copyrights, design rights, or trademarks, would be adequate.

You must figure out how to patent your app if it makes sense. To avoid the route to patent registration leading to a dead end, you should rely on the advice of a patent attorney and other professionals.

Initial thoughts

A software programme that can operate on any device with a supported browser (or operating system) with an active internet connection is an app, for instance, IP Docketers IP Lounge. These days, machine learning or natural language processing applications are some of the most revolutionary and disruptive.

Smartphone applications are already significantly ingrained in customers’ daily lives, serving requirements ranging from navigation and economics to pleasure and health. One reason is the emergence of the Internet of Things, a massive network of data-sharing devices. Google and Apple Maps are two of the most well-known large brands, but for a more recent example, think about the Corona-Warn app, which is accessible in Germany and tracks actual or potential exposure to COVID-19 and contact with others.

The global market for mobile applications, valued at USD 154.05 billion in 2019, is anticipated to rise due to the proliferation of e-distribution platforms, more powerful mobile devices, and the increased affordability of high-speed internet connections. Remember the Pokémon Go craze, anyone? Mobile gaming is constantly growing, with businesses transitioning to in-app purchases or advertising as a new income model.

Beyond technology alone

A variety of factors influence an app’s commercial success. Before a product’s debut, product managers do in-depth market research and use user behaviour analytics to determine its position in the market and where it should grow. They test prototypes to save time and resources on a final product that does not match demand or meet it well. They also try to maintain a lean and clean approach (or “agile,” if you prefer).

If you create your programme flawlessly, it could entice you to forgo patent protection instead of relying solely on the market. After all, obtaining a patent has time and financial expenditures, and patent enforcement may work more consistently in practice in theory. In that regard, offering the best user experience and having a superior design are selling points that can persuade customers to choose a competitive product and decide on market success without applying for a patent.

However, it is usually advisable to conduct freedom-to-operate research before releasing a product. Suppose you have access to specialised databases like IP Docketers Octimine and internal people taught in their use. In that case, you may either outsource this service or search internally.

Product managers must also keep in mind that mobile apps are intricate works incorporating various IP rights, including design rights in countries like the European Union and several of its member states. The game industry provides an excellent example of this: Patents are relatively infrequent, whereas trademarks, copyrighted figures, and music are constantly present. Therefore, having one or more IP rights is crucial for your business plan.

In other words, whether you should try to get a patent for your software depends on both internal and external factors. How much was your idea for a mobile app mature using open-source code? And can you satisfy the strict criteria the European Patent Office (EPO) set forth for proving a technological effect when using your app?

To protect your invention, you should apply for a patent if your programme can address a technical issue in a novel way. But take care: Getting a patent for your software requires more than just creating and submitting an application, just like any other computer-implemented invention (pun intended). If you embark on this path with a well-thought-out application but need to be made aware of the precise legal requirements for filing a patent, your journey may come to an abrupt and discouraging conclusion.

Europe, the game’s over? Obstacles to patent eligibility for a mobile app developer

Any app developer would look to meet the following requirements after filing a patent application for national (and occasionally regional) protection to be granted under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement:

• Novelty: The feature must be brand-new and not publicly known when applying for patent protection.
• Non-obviousness and inventiveness: The operation method must be apparent to a person with common knowledge of the field.
• Industrial applicability: When realised as a complete product, one must explicitly use the app in the industry.

Regional variations may also be present. The European Patent Convention (EPC) prohibits the patenting of software “per se.” However, it permits it if the software adds qualitative or quantitative value to the device. Throughout time, EPO jurisprudence has created rules for computer-implemented innovations and clarified what such an effective means is.

Additionally, your app uses artificial intelligence (AI). In such a situation, you’ll need to speak with a patent lawyer because machine learning algorithms question how traditional patent law interprets the disclosure and clarity requirements. For example, more than just releasing the underlying algorithm or training processes may be required for a person with average skill in the art to replicate the invention. Access to training data may also need to be allowed.

Strategy is involved

The ability to negotiate licencing is a crucial benefit of obtaining a patent because IP rights are rights to exclude. In terms of smartphone apps, the tech industry is very competitive. There is no assurance that someone else won’t independently find the app you have created and want to patent. It would help if you established your competitive advantage as rapidly as possible because there is always the chance that they will move the market more swiftly.

They raise the question of whether you should submit an app patent application. In addition to the market pressure issue already discussed, other commercial justifications exist for moving your patent application forward.

• Prospective investors may pressure a firm seeking new funding to secure patent protection for its invention (s).
• If a corporation wants to merge with your business or buy it, they might ask you to patent your app goods so they can safeguard their investment and get a piece of the IP’s worth.
• By submitting a patent application, you might develop a “sticky” product that increases customer retention. According to this theory, improving your product’s capabilities will be more effective for growth than converting prospects.

When Spotify received a US patent in 2020 for creative methods to make a voice assistant more sensitive to customers’ emotions, it served as the ideal example of the last point. Will use The responsive voice assistant feature described in the patent within the app to enhance user experience, even if the patent does not explicitly address the app itself.

You require clarification even if you receive a patent. The implementation of “ephemeral message galleries” by Snapchat, for instance, led to the filing of a patent application under the Patent Cooperation Treaty (PCT) in 2015 (PCT/US2015/053811). However, this did not prevent Instagram from citing Snapchat and using the same concept for its “Stories” feature in 2016 without sparking an IP clone war. How? Because Snapchat’s patent only covers a part’s technological representation and does not prevent rivals from executing a notion in a different technical manner.

Patent opposition’s claim

Considering all we’ve covered, the following arguments might work against your mobile app’s patent application:

• Apps for smartphones usually cost less money. for less money. To cover the cost of getting patent protection, you must assemble a sizable user base (fees to patent offices, legal expenses, etc.).
• You must ensure that your app will outlive the average three to five years it takes for a patent application to conform to the EPO. Mobile technology ages more quickly than practically any other type of technology.

It could take time to file for patent protection in the situations above. But keep in mind that the innovation cannot be made public before submitting a patent application. Otherwise, a patent examiner will view that disclosure as eliminating novelty.

However, as was already indicated in the introduction, certain alternate forms of security may be less time-consuming and costly:

• I am copyrighting the source code.
• You are registering your logos or other crucial brand-identifying artwork as trademarks.
• Securing NDAs from any people or organisations you work with are a few ways to protect the app’s essential features and code as trade secrets.

You still get what you pay for, regardless of which course of legal action you believe is best for you. When deciding on the best business plan for your app, keep patent attorneys in the loop; you’ll be pleased you did.