Is Your Software or Mobile App Patentable? 3 Qualifying Questions

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Andrew Rapacke is a registered patent attorney and serves as Managing Partner at The Rapacke Law Group, a full service intellectual property law firm.
Is Your Software or Mobile App Patentable?

Did you know the app store turned ten years old last year? We’ve come a long way from those first 500 apps. Today there are over 20 million registered iOS developers for the Apple store. So it’s important to protect the work you do on your mobile app and software.

You’ve spent months working on and perfecting your software or mobile app. Now you want to know how to protect it. After all, this is your baby, and you don’t want someone coming in and ripping off all of your hard work.

There are three questions you need to ask yourself before you decide to apply for a software patent. Your answers to these questions will help determine if pursuing a patent is the best course of action for your business.

1. What Exactly Do You Want to Protect?

You need to sit down and outline why you want a patent and what exactly you are trying to protect. You need to figure out what exactly is patentable and what is not.

For example, your code isn’t patentable, but it is protected by copyright. You can’t patent code because it is a method for achieving an outcome. There could be several different snippets of code that all achieve the same exact result.

The part you can patent is the invention of a system or a set of processes. Your code can be a part of this, but it won’t be protected under the patent. A patent attorney can help you make these distinctions if you are struggling.

2. Does It Pass the Transformation or Machine Test?

This test looks at whether you’re your process is tied to a particular machine or apparatus. It could also transform an article into a “different state or thing”.

While the Bilski vs. Kappos case in 2010 determined that the “machine or transformation” test cannot be the sole method for patentability, it does weigh heavy in the decision process.

To know if you pass the test, look at your software and determine if it is attached to a specific machine. Then you need to determine if that machine is a vital piece of the process. It can’t be an added extra.

If the machine or apparatus is only vaguely connected to your software’s main purpose, then you probably don’t have patentable software.

Another case, Alice Corp vs. CLS Bank Int’l determined that you can’t simply recite generic computer software. This would make the software more of an abstract idea; these are not patentable.

3. Would a Software Engineer Think Your Idea Is New?

Anything you want patented needs to be unique, novel, and new. It needs to be something that someone in the related industry hasn’t thought of before. For software, you need to go beyond this.

Ask yourself if someone who is an expert in the field would think your process is obvious or easy to do. If this is the case, you probably don’t have a good claim to a patent.

There are some small exceptions to this rule, though. The best way to find out if you have a good claim for a patent is to consult with a patent attorney. They can advise you on the likelihood of obtaining a patent.

The law is subtle, and having a knowledgeable team in your corner can help you prevail if there is any question to the validity of your claim. Take Amazon and their one-click patent, for example.

Amazon obtained a patent for their “one-click” feature. This caused controversy when they claimed Barnes and Noble infringed with their “Express Lane” feature. Barnes and Noble claimed that Amazon had no right to their patent claim because their claim lacked merit.

Protect Your Software or Mobile App

If you are still unsure of what the best course of action is, the best thing to do is seek legal advice. Our office can help you determine the investment requirements and possible protections from pursuing a patent for your software or mobile app.

If a patent isn’t the best protection, we can provide you with other solutions to give you legal protection rights. After all, you’ve worked hard to create your software, don’t let someone get a free ride off of your time, effort, and financial investment.

Contact us today and let us help you get your idea patented.

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