Protecting your App

It used to be said that everyone had one good book in them, now it seems that everyone has one good app idea in them. We use them everyday, for leisure, for business, for communication, for more and more things. Billion dollar businesses have sprung up from a few clever apps. And many times you have probably though “wouldn’t it be good if there was an app for that”.

But how do you protect your app?

Well, first things first: what is an app? An app is a little software product. Like all products, different aspects of intellectual property may combine to provide protection over it.

Arguably the most important is the app’s name or its Trade Mark. Its difficult to imagine someone not knowing CANDY CRUSH or ANGRY BIRDS simply from their Trade Marks. It should not be descriptive, nor should it be too close to other Trade Marks in the same or related fields, and it should be distinctive. If so, it may be registered to prevent others from using it. Trade Mark protection may also be appropriate for the unique icon associated with apps.

Some protection may come about automatically, especially copyright. Software code, graphics, icon designs may be protected by copyright if they are original. Ownership tends to be the tricky point with copyright: if you use a third party to write the software code, do you own it? Depends on the circumstances of course.

Design right protection may also come about automatically to protect icons and so forth. Designs may be registered to both extend the length of time of protection and to expand its protection to a “monopoly right” i.e. independent creation by others as well as copying may infringe the registration.

Lastly, patent protection: is it possible? Its complicated. A GOOGLE search of “patenting software” is unlikely to help. The European Patent Convention and the UK Patents Act – both of which date from the 1970s – have the clause that patents shall not be granted for computer programs as such. The “as such” portion proved extremely important in the subsequent history of litigation on the topic. This was used to narrow the exclusion to its limits by various cases.

This has resulted in the position where “software implemented inventions” are possible to patent, and by extension apps may be patentable. Much lies in what the app actually does and what contribution it makes and whether that contribution is “technical” in its effect. All of these are unfortunately still grey areas, but nothing prevents an application being filed and pursued. At the very least once your application is filed, you have a “patent pending”. If your app takes off and it becomes important to achieve patent protection, its likely to be worthwhile pursuing the matter as much as you can; after all, it may be several years before you have to face these questions and it may be shown that you have sufficient technical contribution. Or the law could change, stranger things have happened.

Contact us if you would like to discuss the protection of your app further.