Can You Patent an App?
By Steve Aycock, Software/Mobile App Patent Attorney
and Software Engineer
Short answer: Yes, you can patent an app. An app is a special form of software and software is patentable, so an app can be patented as well. Keep reading to learn more…
If you have an app, you can patent it – whether it is already coded and released in an app store (for less than a year) or if you are just at the idea stage no matter what stage you are at you can patent it.
To patent your app, there are two main phases that must be completed:
- Preparing and filing a patent application; and
- Moving the patent application through the examination process at the Patent Office (this is called patent prosecution).
Each of these two steps can entail quite a bit of work and can seem daunting at first, but if you take it step by step, it is very much doable. Like the old saying goes about how you eat an elephant: one bite at a time, you can approach the patent process the same way and do it one piece at a time.
For patenting your app, you’ll want to focus on the features that make your app unique and that solve a problem or need you have identified. Think in terms of what you would tell others to get them to download your app such as the neat features of your app and then think about how those features come about and what is needed form the mobile device or other computer to make that happen. You don’t have to know all the technical lingo to get a patent on an app. You just need to know how you want the app to work from a user’s perspective.
The main type of patent that is used to protect a mobile app is a utility patent. Utility patents protect the sequence of steps that the app software goes through to provide the functions of the app.
Another type of patent that can be used to protect mobile apps is the design patent. Design patents protect the ornamental appearance of something and can be used to protect the user interface (UI/UX) of the app. Design patents can even be used to protect user interfaces that move or change during use. These are known as transitional user interfaces because they transition in appearance from one look to another.
Both utility and design applications can be used to patent an app. Most often the utility application is used with the design application being used when there is a unique design aspect to the user interface.
Preparing and filing the application
A utility patent application for a mobile app includes a set of drawings and a written description portion called a specification. There are two types of utility patent applications: provisional and non-provisional. The provisional patent application is a placeholder application that is pending for one year but does not get examined and does not issue as a patent. Provisional applications need to be converted to non-provisional applications within the one-year period they are pending.
The design patent application is primarily focused on the drawings of the design such as the user interface and includes a brief written portion that is much smaller than the specification of the utility patent application.
Once a patent application for a mobile app is prepared, it is filed electronically with the U.S. Patent and Trademark Office (or USPTO).
There are two ways you can go with preparing and filing a patent application for your mobile app– you can hire a patent attorney, or you can do it yourself.
Patent attorneys are attorneys that have technical training and legal training. Because mobile apps involve technical aspects of software and also involve constantly changing legal aspects about patenting software, you’ll want to use a patent attorney that has specific experience in software and in software patents.
If you want to learn more about how I can help patent your app, please use the button below to schedule a no-cost consult with me.
If you are considering the do-it-yourself route, I’d say that if you are a developer that is good at diagramming your software in flowcharts or through other graphics and you feel that you can adequately describe your software in writing, then the DIY route might be ok for you. If you aren’t comfortable with software diagrams and written description, it is probably best to use the services of a patent attorney.
If you are interested in the DIY route, contact me and I can point you to some helpful resources. My email is email@example.com or use the button below to set up a consult with me. There is no charge for the consult.
Cost for preparing and filing a patent application for a mobile app
Utility Patent Application
Provisional Utility Patent Application for an App
Legal fees $3,500 and up
Official Filing fees $75 and up
Non-provisional Utility Patent Application for an App
Legal fees $7,000 and up
Official Filing fees $450 and up
Design Patent Application
Legal fees $1,900 and up
Official filing fees $210 and up
Prosecuting the application or moving the application through the Patent Office
Once the patent application for your app is prepared and filed, the process of moving through the patent office examination happens. In the examination process, an examiner who is a technical specialist in software and apps will review your application and may reject it or allow it to become a patent. Quite often, the examiner will initially reject an application, so don’t let this discourage you.
The examiner will be looking for four things in a mobile app patent application in order for it to be patentable:
1) Eligible subject matter – to meet this criterion, the patent application and claims have to show that the app is not an abstract idea within the meaning of how the Patent Office defines abstract idea. This can be a fairly difficult test to meet and needs careful consideration when preparing the application to help meet this criterion.
2) Novel – this means that your app must be new and different in at least one way than any other single app that is publicly known
3) Non-obvious – your app must not be an obvious combination or modification of existing ideas. To use a simple example, you could not patent an app that has a search engine like Google but for finding products like Amazon, which would likely be an obvious combination (plus Amazon already has a search feature, so it would not be novel either).
4) Useful – this is typically the easiest of the four criteria to meet. Most anything is useful for at least some purpose.
A typical sequence of patent prosecution is that the examiner reviews the mobile app patent application and initially rejects it. Then, you or your patent attorney prepares a response to the office action and submits it for further review. The examiner will then review the response and make a further determination.
The examiner can continue to reject your application and the cycle of responding and reviewing will continue, or the examiner can allow some or all of your patent claims to issue as a patent.
How long does it take to get a patent for your app?
The process of the patent office reviewing your application and you responding to them can take anywhere from 1-3 years and even longer in some cases, so patenting your app definitely requires some commitment on your part. The results can be well worth it though. Just look at where the new wealth is being created in the U.S. economy these days and you’ll see how valuable patents on apps can be. Technology is a valuable asset.
The patent office does offer an option to speed up the process for an additional fee when you first file your application. This speed up process can shave several years off the time for a fee that starts at around $1,100
If you’d like to learn more about patenting your app, please schedule a free consultation using the button below. I’d be happy to talk with you.
Frequently Asked Questions about Patenting an App:
- Question: Do I have to have the software done?
- Answer: No, you don’t have to have the app coded. In fact, most of the app patents I work on are not at the coding stage yet. It is a good idea to get your patent pending status in place by filing a patent application before working with outside developers or inventors, etc.
- Question: Do I have to know how to code?
- Answer: No, you don’t have to know how to code. Patent applications for mobile apps generally do not include any code at all. So do not worry about the technical coding details of your app – we can still help you protect it. If we need to fill in any technical details, we can help you with that as well as I am a software engineer in addition to being a patent attorney.
- Question: Some people tell me that apps can’t be patented – can they?
- Answer: Yes, you can patent an app.
- Question: I read on the internet that software or apps can’t be patented – is that true?
- Answer: No, it is not true. Software and mobile apps can be patented. There are a lot of strange writings about patents online. You can disregard most of it unless it comes from an official source such as the U.S. Patent and Trademark Office (USPTO) or a reputable patent attorney or firm.