Application software or apps, programs designed to help customers perform specific tasks or activities, are a huge part of our life today. We can access thousands of apps through our mobile phones for any number of purposes from entertainment to childcare to business. On average, about 100,000 apps are released into the Google Play store every month. Apps are also a lucrative platform for developers— app revenue has only risen over the past decade, and is projected to hit nearly 1 trillion USD in 2023.
Of course, the profitability of apps means that many people are trying to capitalize on their popularity. A cursory look at app downloading platforms can show you numerous copycats to any moderately successful app. This replication can muddy the waters and cut in on the profits of the original developer. The IP regime can help app developers protect their interests, but an app is a complicated blend of many kinds of IP types, and not all of those may be eligible for legal protection.
In India, software per se is not patentable. This can, in many cases, extend to mobile apps unless they have some form of useful practical application, such as location filtering. The specifications for the app need to be drafted carefully because this is tricky territory and it’s likely to be very easy for the examiner to deny the application under the software per se exception. The invention needs to fulfill the criteria of novelty and non-obviousness, and it also needs to be connected to some form of hardware.
In case an app does not fit into this category, it can seek protection under the trade secret regime, where the only requirements are that it has economic value and that adequate measures have been taken to keep it a secret. However, trade secrets do allow for reverse-engineering or independent development of the protected app.
Software is also protected by copyright law. In addition, copyright can be used to protect the visual and auditory components of any app- sound effects, graphics and music. While copyright protection is automatically given to these components, registration is necessary in order to enforce rights or transfer IP.
Trademarks provide protection only to your brand- ie, the name of your app, and the logo. The classification of the mark will vary according to the service provided by the app.
In the United States, written code is protected by the Copyright Act- registering the code allows you to sue for your rights in case it’s ever infringed. It is also possible to use trade secret protection to only disclose parts of the code to the copyright office.
USA does not have an explicit restriction on patenting software. It does have a requirement of improving “computer functionality” which may be a very subjective. In the US, as is the case in India, the drafting of the patent is of utmost importance. The specifics are a bit more complicated but it’s possible for a well-drafted patent application to be approved by the USPTO.
While there are many people who advocate patenting apps, others argue that doing so would use up a lot of time and money for very few benefits. In general, an inventor must look into the potential lifespan, popularity and utility of the app before they decide if it’s worth patenting. Gathering IP rights when they will cost more money than they can save you in the long run is a bad business decision. Copyrights and Trademarks are less expensive, but may not provide protection quite as stringent or complete.
An added (or, in some cases, alternative) layer of protection can be provided using contract law. Most apps have terms and conditions potential users must agree to before they can use the app. This EULA (End-User License Agreement) usually restricts copying and reproduction. In many cases, developers of apps with limited and short-term economic value may be better off using purely EULA terms to protect their property.
Author: Varsha Valsaraj, Attorney at PA Legal.
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