Generally the first advice you'll hear about whether you should patent an app idea, is don't do it. People will tell you that to patent a mobile app is costly, timely and can use up necessary resources. In saying that though, the world's largest technology companies patent their apps as it is also the most robust kind of intellectual property protection within the app space.
Whether you decide to patent your app idea or not, here at Appifany we think it's useful to know how to do it successfully anyway. So, below is a comprehensive overview of how to patent a mobile app. Keep in mind though that it can be unnecessary and unwise to patent your mobile app idea if you're an early stage startup.
What is a Patent?
Before we go through how to patent your mobile app idea, let's discuss what a patent actually is. IP Australia defines a patent as a right that is granted for any device, substance, method or process that is new, inventive and useful. A patent is a legally enforceable right to commercially exploit the invention for the life of the patent.
A patent is different to copyright as copyright provides protection for original works of authorship, whereas a patent protects symbols, slogans, designs, etc that identify a company, service or product. Or in other words, it is the protection of inventions and discoveries.
So, for a mobile app for example, the inventive solutions and processes which allow your app to function, would possibly be able to be patented. They are potentially patentable not as design patents, but rather utility patents.
There are two types of patents in Australia:
A standard patent, which gives long-term protection and control over an invention. It lasts for up to 20 years (or up to 25 years for pharmaceutical substances).
An innovation patent, which is a relatively quick and inexpensive way to protect an incremental advance on existing technology rather than a ground-breaking invention. Protection lasts for a maximum of eight years.
Whether your invention is better suited for a standard patent or an innovation patent is dependent on the nature of the advance made by your invention over what is already known in the same field of technology. There is no simple rule for determining which patent will better suit your invention.
How to Successfully Patent a Mobile App
We obviously can't guarantee that you application will be approved, however here's the list of specifications from IP Australia's website in order for a patent to be granted.
For a patent to be granted an invention must:
Be a manner of manufacture; a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas, schemes or purely mental processes.
Be new (the legal term is ‘novel’), which means that the invention has not been publicly disclosed in any form, anywhere in the world, either by yourself or another party.
Involve an inventive step for a standard patent. The invention must not be an obvious thing to do to someone with knowledge and experience in the technological field of the invention. (This is only for a standard patent)
Involve an innovative step for an innovation patent. There must be a difference between the invention and what is known about that technology, and this difference must make a substantial contribution to the working of the invention. (This is only for an innovation patent).
Be useful. Your invention should do what you say it will do.
Not have been secretly used by you or with your consent.
Definitely ensure all of these requirement are fulfilled before applying for a patent.
There are different types of patent applications in Australia, so be aware of which one you'd like to apply for. The three different applications are:
Provisional applications. These are used as a temporary protection while you put in a complete application. You must file the complete application within 12 months of receiving the provision application.
Complete applications. These are applications for standard or innovation patents, and is what's necessary to actually have a patent granted.
International applications. This allows you to apply for patents in multiple different countries simultaneously.
For much more detail on the application process for a patent, visit IP Australia.
Should You Patent an App Idea?
A patent is not bulletproof protection and it requires maintenance, although it does send a clear signal to potential trespassers. Also keep in mind that if you patent something, you're making it public and showing the whole world what you're doing. This may not be what you want to do if you're in the early stages of your startup. For inventions with a limited market value, the cost of getting and maintaining a patent may not be justified either.
Some other key reasons why you may choose not patent an app idea are:
They can be very expensive and most startups (especially if you're bootstrapping) can't afford to complete the full application
It's not an overnight process. It can take up to several years
In early stage startups, you have to be adaptable and often pivot a fair amount, which may render a patent irrelevant before the application is even completed
Roughly just over half of patent applications are successful
Due to the issue of relevancy, the better question to ask is when should you patent the app idea? Well, a timing difficulty for startups is that usually the fundamentals of their business models and products already need to be established.
With all of these things in mind, have a think before deciding to patent your app and do your research! Hopefully this was a helpful start, and for more app advice check out our resources.