Have you recently created a smartphone app that is integral to your business’s operations? As mobile applications become central to certain businesses, the importance of protecting the app for the continued success of the business is paramount. A patent would grant you exclusive rights to commercially exploit the app and its method in the current market.
The question stands – How does patenting an app differ from patenting any other invention?
Patenting an app is a complex and difficult process, hence LawPath recommends seeking advise from a patent attorney.
What is a Patent?
According to IP Australia, a patent is a right over a device, substance, method or process that you have innovated which is legally enforceable against the world.
Patenting an App
What is Considered in the Patent?
Just like any invention, an app can be made subject to a patent application. For more information on whether you can or should patent a mobile application, check out our guide, Can You Patent an App.
Patenting an app involves obtaining exclusive rights to the ideas and methods the application employs, rather than its code, design or logo. The code is automatically protected by the Copyright Act 1968, the design can be protected by design registration and the logo by trademark.
A patentable app must satisfy section 18 of the Patents Act 1990 (Cth) and is filed with IP Australia. For more information regarding how to patent and the section 18 requirements, please view our guide How to File a Patent.
Difference with Patenting an App
Patenting applications are more complex as courts have gradually redefined what is a patentable subject matter for apps.
As an end result, the app must be “an artificially created state of affairs of utility”.
An artificial state of affairs involves the following considerations that must be made before filing a patent for your app:
The app must have:
- An industrial application (IP Australia);
- A material advantage;
- Value in the field of economic endeavour; and
- Must be “integral” to the invention rather than “merely incidental” and abstract.
The app cannot be:
- Using a standard computer software;
- A mathematical algorithm or abstract intellectual concept on its own (IP Australia);
- Carrying out the steps of another method.
Patenting an app is a complex and difficult process with a range of considerations that must be taken into account, hence LawPath recommends seeking advise from a patent attorney.
It may be safe to start off with applying for a provisional patent.
A provisional patent declares your intention to file a full patent on the mobile application later on. It does not provide the protection of a full patent – it grants you 12 months to decide whether or not to continue with the full patent application. A provisional patent is useful to resolve disputes regarding your app as you can sue another party that has infringed your patent from the priority date onwards. The ‘priority date’ is the date you file the provisional application.
LawPath has access to highly qualified patent attorneys that can assist you in applying for a patent. Contact a LawPath consultant on 1800 529 728 to obtain a fixed-fee quote from our network of 750+ expert lawyers or to get answers to your legal questions.