A Definitive Guide on How to Patent your Mobile App

A good idea is like finding a pearl amid the ocean – hard to come by but worth all efforts.

This is more than appropriate when it comes to mobile applications. Because the market is competitive than ever, you need to have a disruptive app, potent of attracting more and more customers.

Now, it is natural to feel paranoid, and rightfully so, that someone else might claim that application by creating a similar one.

Is there something that can be done to avoid a miserable fate like this? Of course.

More often than not, people ask this question- “Can a mobile app be patented?”, to which the answer is both one-worded and a little complicated.

To begin with, yes, you can patent a mobile app. Having your mobile application patented even before you officially disclose it in the market and to potential investors is something that can protect your project from being duplicated.

What is a Patent?

You must have come across this term at least once, if not more. However, there are very few people who actually know what it actually means. In simple words, it is a right granted by the government to the inventors that give them the power to protect their product and legally sue anyone who copies, uses, sells, or imports their invention, for a particular period of time. Though seems small, these advantages of app patenting can be a life-saver in some nasty situations.

It is a type of intellectual property rights (IPRs) defined by the World Intellectual Property Organization concerned with the “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce”. Applications like Facebook, Instagram, Spotify, and Dropbox are just some examples.

A patent lasts for 20 years from its filing date and supports the first-to-file system rather than first-to-invent.

Why or Why not to Patent a mobile app?

It is not so much a matter of “why” or “why not” as it is a matter of “when”. It all depends on whether it is just a vague idea or a work-in-progress product. The whole process of patenting a mobile app is tediously long, costly, and time-consuming on top of it. In such a case, you need to be sure that your mobile application is worth all the resources, efforts, and time you might require to put in. 

It is a given that for startups it becomes a matter of concern when they have to employ a large share of investment in patenting a mobile application, whereas it could all be used elsewhere for improving the product.

{Bonus read: How to successfully run a startup in the mobile app industry?}

How is Patent different from Copyright and Trademark?

Copyright

Like Patent, Copyright is also a type of IPRs but a little different though. It is a collection of rights issues to the inventor or author of any work i.e., literary, artistic, educational, musical, or the computer programs and allowing them to publish or reproduce their work, make derivatives, etc., irrespective of whether it is published or unpublished. 

It protects the expression of ideas and not the idea itself. So in our case, you can copyright your app logo and not the app itself, as it does not cover facts, ideas, systems, or methods of operation.

Trademark

Patents prohibit others from making or selling the protected invention, whereas a trademark protects words, phrases, symbols, logos, or other devices that are a source to identify the goods or services of the originator, preventing other competitors from using them. So, a trademark can be issued for the logo of your application to stop your competitors from copying it and creating confusion among the users.

Prerequisites/Eligibility for Patenting an app

We have already mentioned above that patenting a mobile app is not something you should be doing for every other project you take on. So let’s take the idea further and discuss in detail the requirements of the US Patent & Trademark Office (USPTO) that your project should fulfill.

Now, the three prominent criteria, on the basis of which your application will be reviewed, are generally the same for all the countries. 

1. This is the first criterion that you should tick off on the list. You cannot just patent an abstract app idea. So, when filing an app patent, you have to mention all the important details and documentation of your project from its code to the flow and functioning of the application, in favor of the fact that it is practical and useful. 

One case in point is the case of Alice Corp. v. CLS Bank International. In 2014, the supreme court initiated a two-step analysis.

The first step was to ensure whether the patent claim contained an abstract idea like a method of computation, algorithm, or another general principle. If it had, the procedure would move to the next step. If otherwise, the claim was considered potentially patentable, subject to the other two criteria.

In the second step, the court had to find out whether the patent claim added “something extra” to the abstract idea than what already exists. And might be considered “inventive concept”. If it is negative, the idea would be deemed invalid.

2. The second criterion out of the three is whether the invention (application as you will) is novel (as in new) or not. It means the application should have something that is substantially unique and different. In the words of Angelo Firenze – 

So, you need to make sure that your idea has not been patented before by anyone, lest your request for a patent would be rejected and you might be subjected to infringement. So, do your research. You can refer to the USPTO website or Google patents for inquiring purposes.

3. The third criterion, and rather the difficult one, is that the mobile app should be non-obvious. Meaning, your project will not get sanctioned if it just the integration or amalgamation of, but slightly modified, pre-existing technologies without possessing any unique trait or functionality.

Now, that we have dealt with the requirements, let’s move forward to the whole process of how to apply for a patent for your mobile application.

Steps to patent a mobile app

In this section, we will cover one of the most asked questions by newbies of mobile app development – “how to patent a mobile app?”.

1. Find and enlist with a patent attorney

In order to present a well-formed high-end patent, to increase the chances of your patent application getting selected, you must consult with and hire a software patent attorney, given they have relevant years of experience. 

Since it is a legal process and might include litigation, it is best to hire a professional than to try doing it by yourself. It is not advisable to go with the first attorney you come across. Do your research and look for the best under your budget.

2. Mobile app invention disclosure

“Having an idea is just work half done.”

To continue this quote, one must realize the idea into actuality (at least to some extent) as to confirm its feasibility, something that is highly prominent as an eligibility criterion.

Since the court needs tangible proofs of your invention to issue a patent against your application, you must make sure to document the whole development process. Also, you can create a prototype of your application to breakdown its flow. 

This will incredibly help your attorney to figure out the flowchart of your application since it is not the code but the functionality and processes of the app that gets patented.

This is great for figuring out the various implications of your application in different industries and gives you a new direction to think of what other elements in your mobile app are eligible for patenting.

{Also read: Why Does Your Business Need A Mobile Application for Growth?}

3. Practice patent search

Though you have done your homework, it is always advised to hire patent attorneys that conduct a worldwide search for applications similar to yours or have similar functionalities or flows, to avoid any unanticipated infringement from other companies.

After all, it is better to spend a few bucks and make sure your patent has the most chances of getting sanctioned, than to start from square one – all over again. You can do your research from the USPTO website we have mentioned above.

4. File a provisional or non-provisional patent application

Now, there are two types of patent applications that you can use as your patent application for your mobile app – provisional and non-provisional patent applications.

In order to choose one, as you must, you need to ask two questions –

1. How fast do you want your patent granted?
2. How long do you want to delay patent examination costs?

If your requirements point to the first question, then non-provisional is best suited for you. However, if otherwise is the case, then definitely provisional patent application, as it is never examined, as opposed to non-provisional. Here is an illustration to clear the picture in your mind –

5. Submit your application

It is finally showtime. Once you have successfully performed all the above steps and have prepared a patent application, you are required to file it with the USPTO. Though this is a tedious process involving a lot of paperwork, you must see it through. Some of the important documents that you may require during the process are –

• Oath/Declaration
• Specification
• Entity Status Form
• Information Disclosure Statement
• Application Data Sheet (ADS)
• Claims
• (optional) Patent Cooperation Treaty (for International Filings)
• Drawings
• (optional) Application to Make Special
• Fee Sheet
• Cover Sheet

Cost of Patenting a Mobile App

To answer the question of “How much does it cost to patent a mobile app?” we would say that it varies from types of the patent application you apply. You can refer to the USPTO listing to know the more specific costs including every fee. More so, here are a few basic charges that you are required to pay while filing for app patent application:

• Elementary filing fee: $70-280+
• Patent search fee: $150-600
• Patent Examination fee: $180-700
• 3.5-year maintenance fee: $400-1600 (involves keeping a granted patent valid)
• 7.5-year maintenance fee: $900-3600
• 11.5-year maintenance fee: $1850-7000+

For the sake of mentioning an amount, the cost for patenting a mobile app via provisional patent application can amount anywhere between $2000 to $5000, whereas, for a non-provisional patent, it ranges from $10,000 to $15,000.

{Also Read: How much does it cost to make an app?}

Time-taken in Patenting a Mobile App

More often than not, applications get rejected and resubmissions are done over and over again. This back and forth process can last up to 4 to 6 years, based on the circumstances. In fact, it took 6 years for Mark Zuckerberg to get a patent for Facebook which was granted in 2012.

{Note: Check out our “How much time does it take to build a mobile app?”}

Conclusion

To bring this discussion to an end – Yes, you can patent mobile applications (not just an idea, there should be tangible proofs of the project). It also depends on your needs (as discussed above in the article) whether or rather when you should think of patenting your mobile application. In any case, app patent protection for your intellectual property is adamant as it is a safeguard for your app against copying, unconsented usage, and more, for as long as 20 years.