So you’ve got a brilliant app idea that could turn out to be the next Uber. However, you’re concerned about others simply taking a new idea from you, or replicating your app once launched.
This blog article takes a look at obtaining exclusivity to your app idea by way of patent protection.
Is An App Idea Patentable?
Most people don’t realize that software can be patented in Australia, and many countries around the world. Generally, in Australia, software that has a technical character for threshold of ingenuity is patentable.
During examination, the patent examiner will consider whether your software is something more than simply putting a business method “into” a computer. Business methods have traditionally never been patentable, and examiners now often assert that simply putting a business method into a conventional computer, such as a mobile phone, is not in itself sufficient to confer patentability. As such, if your software app can be said to be doing something more than the normal use of a computer, it may be patentable.
If you have a valuable app idea, it is important that you get a professional patent attorney opinion with an established patent attorney specializing in software related applications. Patentec Patent Attorneys offer an initial free consultation to go through your app idea concept to identify potential patentable angles.
Should You Patent App Idea?
Whether or not you patent your app idea essentially depends on the perceived commercial value of the app idea. In other words, there is justification to file a patent application to look to protect a mobile phone app idea that may become valuable down the track. Having a registered software patent provide you with exclusivity to the app idea, potentially multiplying the value several fold.
What is the software patent process?
In general terms, at the initial commercialization stages of a software app idea, it is recommended to file the provisional patent application to effectively obtain an initial 12 months of international patent pending. Having filed the application to reserve your rights internationally, you then have 12 months of breathing space in which to test the commercial viability of the app. If commercialization continues to go well, you can then choose from at least 148 countries for eventual patent protection down the track.
The provisional patent application also allows for the capturing of improvements if any arise during the initial 12 month period.
What are the patent eligible criteria for software app ideas?
In general terms, the main criterion is that your software app idea must be patentable and must have at least one point of novelty.
Patentability goes to the above criteria of showing that your app idea implementation is more than the normal use of a computer. When it comes to novelty, we must be able to show at least one point of difference, or improvement in light of existing apps.
In this regard, when filing a patent application, a good patent attorney will prepare a technically thorough patent description so that, during examination, any particular features and functionality described in the document can be used as a novelty, conferring point of difference to get the patent accepted.
Don’t Disclose Without Protection.
If you are going to pursue patent protection for your software app idea, don’t disclose your app idea to others prior to filing a patent for two reasons.
- The first reason is that, on the date that a patent application is filed, it must be new in light of any publication or use anywhere in the world. In this regard, publication of the app idea by the inventor, such as on a website or the like, or evidence of use of the app idea may invalidate any subsequently filed patent application.
- 2. The second reason is that recipients of the information relating to app idea may begin to develop the app idea themselves, thereby coming what is referred to in patent law as “prior users” and having a defense against infringement for any subsequently filed patent applications.
Summary of Considerations for Protecting Your App Idea
In summary, when considering whether or not to patent your app idea, firstly consider the potential monetary value of the app. If the app has the potential to be particularly valuable down the track, then file a patent application.
If filing a patent application, so as to present a patentable claim, identify technical characteristics or any ingenuity implemented by your software to show that your app idea is more than “normal use” of a computer.
Then, approach a software patent attorney to have your software patent specification properly prepared.
Finally, and most importantly, don’t neglect the commercialization of the app during the initial 12 months of patent pending so that you can make an informed decision in light of the commercial achievements of the app as to how to continue with the patent process.
However, it is fine to discuss your idea with an app development company after you have signed a Non-Disclosure Agreement with them. Such free consultancies would provide you enough exposure to other possibilities and points to strengthen your patent.
About the author.
Nicholas Milne is an expert patent attorney with the leading Australian intellectual property firm Patentec. Nick has worked with 100s of patents to secure IP rights for his clients. Nick holds a Bachelor of Science (BSc) in Electrical Engineering with First Class Honours, Bachelor of Laws (LL.B) and a Master’s Degree in Intellectual Property (MIP)
You can contact Nick at: www.patentec.com.au/contact
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