With increase in use of mobile devices in our day-to-day life, the innovation has shifted from personal computing to mobile computing. Particularly, the innovation is striving in developing applications running on mobile devices on the go. With the focus shifting to gain commercial success in developing mobile applications, lot of application developers are puzzled if the mobile applications can be protected from someone copying the applications when they publish or market the applications. With this post, we will throw some light on how mobile application developers can protect their innovation before the mobile applications are made public.
When we speak of mobile applications, two marketplaces come to our mind: Apple’s Appstore and Google’s Playstore (Who uses Microsoft and Blackberry stores anyway?). If we look at the applications on the Apple’s Appstore and the Google’s Playstore, the applications are nothing but software. There is a general perception that software is difficult to protect and let us assure you that software can be protected by means of patent and of course by copyright. In this post, we lay our focus on protecting mobile applications by patenting.
Typically, the mobile applications are categorized into two types. First, the applications that control the mobile device itself. Second, the applications that connect to a remote server to process data. For example, an application that can be used to control hardware of the mobile device, such as camera in the mobile device is patent eligible. Similarly, an application running on a mobile device that connects to a remote server containing data that either stores the data or process the data to be used on the mobile device is patent eligible. Let me explain to further clarify the above aspects. As known, many mobile applications that connect to the server processes the data at the server level and the data is sent to the mobile device. For example, a music recognition app records a segment of music and sends the audio clip to a server for processing-intensive analysis and recognition. The server then sends back information to the mobile device. For instance, the server may send the name and description of the identified music track, along with links to purchase or share the track. In the above example, the mobile application is making the mobile device to function in a certain way. For patenting the application, the functionality achieved using the application will be considered. The software code as-is, that achieves the function is not eligible for patent. The software code as-is can be protected under copyright (again, not getting into details).
It is important to understand the patentability criteria which are essential to ascertain whether a patent can be filed for the invention (mobile application). Generally, the patent offices across the globe have specific criteria for respective jurisdictions to determine patent eligibility for mobile applications. To grant a patent, the patent office of respective jurisdictions performs a search. The patent office performs the search to determine whether the mobile (patent) application has ever been patented, used or published before anywhere in the world. Further, the patent office checks whether the mobile application solves a particular problem in a technical field and produces a useful, concrete and tangible result. After determining that the mobile application submitted is not disclosed or used anywhere in the world, solves a particular problem in the technical field and has commercial application/ utility, the patent office will grant a patent for the mobile application.
The application developers should know that there is no worldwide patent and they have to file the patent application in each country of choice, depending on the market for the mobile application. As known, success of mobile applications depend on which markets one caters to. For example, if the developer in US wishes to publish the mobile application in Appstore of Europe and Japan, it is appropriate for the developer to file a patent application in US, Europe and Japan. In such a scenario, the developer should consider filing a provisional patent application in US, and wait for a year to see how the mobile application is performing in other markets. After analysing the performance of the mobile application in other markets, the developer may take priority from US patent application and can file patent application in other jurisdictions. If otherwise the developer is sure to file in multiple jurisdictions considering the mobile application to be a breakthrough innovation or for obvious business outcomes, the developer can file non-provisional patent application to protect the innovation.
It is important to know that patenting the mobile applications provide the greatest commercial benefit if expected lifespan of the technology substantially exceeds over the years. Further, patenting is beneficial if the technology of the mobile application is of great interest, appeal or application and if there is a scope for competitors to use the technology in their own applications. The developer must take care before filing a patent application for the technology which underlies a mobile application, in both the mobile device and the remote server. Also, the business outcome expected from the mobile application should be analysed in the long run. Filing patents in multiple jurisdictions will cost a lot of money for the developers. However, what if the developer just invented the next blockbuster? Therefore, developers should consider filing patents for their innovations to showcase their innovation and to protect themselves from competition.
Author, Chandrasekhar Raju, is Manager and Patent Agent at IP Astra