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Can I patent my app?

 

Update 21 December 2015 - refer to Australian computer implemented invention crashes

 

Can and should you patent your app? Google Play and Apple’s App store have made “app” an everyday word, so it is understandably an important area for many entrepreneurs. As with any new venture, the question of how to corner the market comes up and, quite often, “can I patent my app”?  

How do you know if your new app is patentable? Isn’t there an app for that? Unfortunately, not one that I am aware of. Generalising a little, an app is patentable as long as it is new, varies from earlier apps or other solutions in a non-obvious way, and is not just the implementation of an abstract idea embodied in an app.

The rules for patenting any invention vary slightly in different countries around the world. For example, the US and Australia are more permissive to “software patents” than Europe, which requires any “software patent” to have some kind of technical interaction. An example of an app which would generally be considered patentable in most countries, assuming it was new and non-obvious, would be one which uses multiple devices GPS positions to solve some sort of geospatial problem. The fact that a system uses real world measurements, such as a device’s position, generally takes an invention beyond simply being a “software” invention, even if the hardware used to take the measurements is well known.

With this in mind, we can determine whether your new and amazing app is patentable by answering a few questions and considering the resulting answers. The flow diagram shown below summarises the questions but a little more detail is provided below.


Patentable / Unpatentable flow chart

 

If you decide that the answer is “no” based on these questions, don’t be put off approaching a patent attorney anyway, just in case you have a particularly unusual case! Most patent attorneys don’t charge for an initial chat on the phone.

1.  Is your app functionally new? Does it perform a new function, or function in a new manner (even to obtain an old result)?

This is a question which may not be easy to answer straight away and a little guidance as to how to answer it is required. But that is often the case for any invention, whether embodied in an app or not.

The question should be answered based on your knowledge at the moment with regard to anything that has been made public in any country around the world. That is, has anyone else in the world developed a system which performs the same functions as my app? It is relatively rare that an invention exists where the functions an app performs are identical to previous apps or systems, just in a new area or with new information. Note that we are not asking if there is another app with the same functionality – the question is whether your app is functionally new. So, any system which performs the same functions could be a potential issue, not just apps.

As suggested above, achieving the same result as previous systems but in a new way is generally patentable. The new way may have particular advantages that previous ways do not.

If the answer is “yes”, great, move on to question 2.

If the answer is “yes, the other app has a really poor UI, so ours is going to sell way more”, then you have a marketing and usability advantage but, in the context of this question, your app is unlikely to be functionally new.

If the answer is “no”, then the likelihood is your app is not patentable. However, there are exceptions. For example, if a UI has an effect beyond the normal organisation of information, such as reducing eye strain, the UI may be patentable in itself.

2.  Does your app interact with the physical world?

What we’re looking for here is interaction such as input from a user, getting data from a motion sensor in a smartphone, receiving GPS information, etc. An app that simply processes information, or is the implementation of an abstract idea, is less likely to be patentable.

Interaction can come in many ways, of course: Apple owns a patent to the “swipe to unlock” feature on iPhones in the US, Australia and Europe (amongst other countries). Therefore, new input arrangements, clever use of device sensors and even a new type of UI (as mentioned above), can be patentable where there is some particular advantage and, particularly, a technical advantage.

3.  If the answer is “no” to question 2, does the app provide a previously unknown advantage, preferably “technical” in nature, which is more than just related to the presentation of information?

If you’ve answered “yes”, you probably fall into a category of “potentially” patentable apps. Your app may be patentable in some countries, such as the US or Australia, but not in others. Having protection in the US, which is more permissive to “software” based inventions, may be sufficient for your purposes.

If you’ve answered “no”, it is relatively safe to say that your app is not patentable. But don’t let that put you off pursuing development – design and marketability are often just as important as monopolising features.

4.  If the answer is “yes” to question 2, does that interaction, or the ultimate result of that interaction, result in some sort of improved or alternative outcome?

If you’ve answered yes to questions 1, 2 and 4, you most likely have a patentable app. Congratulations!

Now, seek some professional advice to ensure that your app is protected properly. As Red Adair said “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur”. More information on what is involved in patenting your idea can be found on our “How to patent” page.

 

Ian Lindsay Australian Patent Attorney 

Ian Lindsay - Consultant

Patent attorney & trade marks attorney