Can I patent a mobile application or protect the idea

Question

I am about launching a mobile application soonest (in 5 days time) but I am really scared about others using the idea behind the whole system because the few people I have spoken to about investing in it always say they want to buy the whole system out-rightly.

I built the whole app myself to avoid ideas leakage and it has taken months to complete. I am starting the whole thing small and later, new features will be added. I don't want somebody to rush in and build a more powerful app on my ideas.

It is a social app that is built in a way to generate income. I want to protect the idea generally.

1. Can I apply for a patent to protect the idea?
2. or what can I do to avoid other people using the idea to build a similar app?

Answer 1

You have provided very little information about what you your app is doing. But based on what you have provided, I believe it is unlikely that you could receive patent protection. Generally speaking, a patent cannot be used to patent an idea, but rather the concrete manifestation of that idea. Said another way, to be patent eligible, an invention must be more than an abstract concept implemented on a general purpose computer (I believe a smart phone would qualify as a general purpose computer). You can read about the most recent and impactful decision in this area of patent law here: http://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_International

Even though your idea and implementation may not directly map to those at issue in the Alice case, a large number of other cases and PTO decisions have been handed down based on Alice, and which also likely would put your invention in a bad light.

You should obtain a confidential consult with a patent attorney or agent to be certain.

Answer 2

Mobile application or software or the computer program can be protected by copyright law and patent law.

Under copyright law, software or the computer program is usually regarded as a "literary work". The unique characteristic of computer programs that differentiate them from other literary works is their dynamic essence, which usually includes algorithms or mathematical formulae's or logical condition etc, which manipulate symbols producing certain virtual or physical effects,etc. Copyright law provides protection to the software or the computer program´s expression and not the functional aspects of the software. Hence, computer programs differ from other copyright-able subject matter, in the sense that the text is not the most important aspect; rather the importance lies in the functions established by the program code.

Patent: Patent is becoming the method of protection for computer program's, software or mobile application. A patent is an exclusive right granted for an invention, which comprises a product or process. The invention must be novel or confers a new solution to a technical problem. Further, the Invention is a solution to a technical problem in the field of technology. An invention may relate to a product or a process.

The patent office have been granting patents to computer implemented inventions or software related inventions based on the technical solution provided to the technical problem, known as the technical character. So one of the keys for successfully having a patent granted for software innovation lies in the ability to present the software innovation in such a way that it includes technical character.

Further, software protected under the patents act should satisfy the patentability criteria.In order to meet patent-ability criteria, the software or the computer program executed on a computer processor must be novel or confers a new solution to a technical problem, and non- obvious to one of "ordinary skill" in the field of invention.

One more important point that needs to be noted is 'enablement'. The patent office expects the patent to disclose information about the invention for which patent protection is sought, to an extent that a person with ordinary skill in the technology, to which the proposed invention relates, can use the provided information to make and use the proposed invention.

If a computer program or software protected under copyright law protects an original work in the tangible fixed form in which it has been set down, whereas a computer program or software protected under the patent law protects the creation of inventive concepts as well as their practice.

For further details please check the link below http://www.invntree.com/blogs/are-software-inventions-patentable-india http://www.invntree.com/blogs/disclosure-requirements-for-software-patents http://www.invntree.com/blogs/software-innovations-patent-or-copyright-what-should-you-file

Regards

Vinay

Answer 3

There is not a simple answer to this question.

Have you already shipped the app? In the US, you only have one year to file a patent application after the invention has been on sale. As a result, the clock may be ticking.

As Bobfango said, you cannot patent an idea. However, you could attempt to protect your application if it is directed toward patent eligible subject matter (see below) and includes a novel and non obvious aspect. As an example, your application may perform a method that includes A, B, C, and D. There may be one piece of prior art that teaches A, B, and C. If A, B, C, and D is both novel and non obvious, then your method may be patent eligible.

Bobfango also brought up a recent Supreme Court case: Alice. In Alice, the Court found that the software related claims were directed toward an abstract idea. Since Alice was handed down, courts have been rather hard on some software related patents unless they include "something more" than the abstract idea. As an example, courts are not allowing applicants to receive patents on things that could be done on pen and paper, but use a computer. However, the law related to eligible subject matter is experiencing a ton of changes right now. Keep in mind that if you were to file a patent application, the USPTO would not even examine your application for 2-3 years. The law related to eligible subject matter will likely be different by then.

Based on the above information, you could consider performing a patentability search. If the outcome of the search is positive, then you could consider filing a provisional patent application or a non-provisional patent application. Try reaching out to a patent attorney or agent for more information.