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What To Do When You Are Thinking About Patenting Your App Idea

  • 08.09.2016
  • Uncategorized

When it comes to patenting app ideas, it is important to know the dos and don’ts to avoid the common pitfalls experienced by many app inventors. Let’s have a look at the important dos and don’ts for all app idea inventors to consider, when it comes to patenting their app idea.

1. Don’t Disclose Without Protection.

If you’re thinking about patent protection for your app idea, you shouldn’t disclose the app idea to others. This is imperative mainly because of the following reasons:

  1. When filing a patent application, on the date that the patent application is filed, the claimed invention must be new in light of any publication or use anywhere in the world including that of the inventor. As such, if you inadvertently disclose your app idea, such as by way of publication on your website, the examiner can find out and subsequently invalidate your patent application. Certain countries such as Australia, the United States, Canada and Japan offer “Grace periods” which gives an inventor 6 or 12 months grace in which to file a patent application after having disclosed the invention. However, grace periods should not be relied on given that their application has not been stringently tested in courts. Grace periods are inconsistently applied, for example in Australia one has 12 month grace in which to file a complete application whereas, in America one has 12 month grace and wish to file a provisional application and, for Japan, the grace period is only for 6 months. Moreover, grace periods are available only to a limited number of countries.
  2. If you disclose your app idea to someone else and they immediately take steps to start exploiting the app idea, such as through their own development, you cannot subsequently file a patent application to stop them because they could avail themselves of the “defense of prior user exemption”. In general terms, the fundamental tenet of patent law is that one cannot file an application and retrospectively stop someone doing what they were doing prior to the filing date of the application.
  3. By disclosing your app idea to others there is a risk that they may start implementing your app idea and you wouldn’t then be able to make them stop even if you subsequently filed your own patent application.

5 Great Ways to Protect your App Idea will enlighten you with all the tips and tricks to protect your app idea from potential theft.

2. Do Evaluate the Commercial Value of Your App Idea

Evaluating the commercial value of your app idea is important, because the main reason as to whether to file a patent application or not essentially goes to the eventual value of the app.

  1. Filing a patent application in itself provides leverages during the initial commercialisation stages, wherein your investors are encouraged and your competitors dissuaded. In this regard, remember that examination of a patent application can be delayed for some time, such as wherein, in Australia, the latest examination can occur is five years from filing.
  2. In evaluating the commercial value of your app idea, consider ways in which it could be monetised. Usually, app ideas are monetised through app download or in app purchases. It would be reading tips to monetise your app.
  3. Alternatively, an app can be sold for the user base itself wherein, as a very general rule, one could potentially expect approximately two dollars per user when selling an app.

As such, by evaluating the commercial value of the app beforehand, you can make an informed decision as to whether the potential value of the app idea justifies the patent costs.

3. Chat with a Patent Attorney

The patentability of software is an evolving field of patent law developed primarily over time by our courts. In this regard, your patent attorney should be familiar with the most recent court case decisions specifying the most recent developments as to the patentability of software.

For example, one of the more recent court cases in Australia from 2015 was the RPL Central court case which stated that software is patentable as long as it is “something more” than simply putting a business method “into” a computer. To put another way, patentable software applications should show some sort of technical character or ingenuity in application which goes beyond the mere “normal use” of a computer.

4. Commercialize Quickly

Once having filed an application, it is important that you commercialize your app idea quickly.

Generally, when starting the patent process, you would start off by filing a provisional patent application. The provisional patent application is a great way to start the patent process because it effectively allows for 12 months of international patent pending, effectively extends the maximum term of patent protection by one year and allows for the capturing of improvements during the initial 12 month period if any arise and is not automatically published.

However, at the end of the 12 month provisional period, you must decide how to continue with the patent process. Such a consideration is essentially dependent on the commercialisation progress over the 12 month period.

At the end of the provisional period, you can start choosing from at least 148 countries for eventual patent protection. In this regard, the country to be chosen and the number of countries pursued are essentially dependent on how the commercialisation of the app idea is tracking. For example, if commercialisation is going well, one would have justification to continue into more countries of interest.

Related articles on the whether an app idea can be patented, the patentability of an app idea and recording your app idea for patenting purposes will give you guidance on how to go about the patenting process with confidence.

Conclusion

As discussed above, there are several important dos and don’ts for app idea inventors when it comes to patenting their app ideas.

If you require any assistance, contact a patent attorney for a consultation to go through the details of your app idea to evaluate the commercial merit and the patentability thereof.

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