Design, development, submission, marketing: all are vital elements of a successful app release plan — and all could be made meaningless if you fail to secure your intellectual property rights.

App entrepreneurs have a variety of methods from which to choose when attempting to secure claims to their software, the most prominent of which are the attainment of patents and copyrights. 

Of these two options, the copyright has traditionally proved to be the more popular choice among software creators. That trend is rapidly changing, however, as more and more developers seek patents in order to prevent competitors from using their ideas to gain advantages in the mobile marketplace.

The move toward patents is due to limitations of copyrights in securing the protection of the ideas that underly the processes involved in the creation and functionality of apps.

While a copyright can protect a tangible program, it leaves open the possibility that someone will seize upon the idea behind that app to create a similar piece of software. A patent, on the other hand, protects not only the actual app, but its raison d’être as well.

“Patents are the best way to protect your idea,” said attorney James L. Kwak of Columbus intellectual property specialist firm Standley Law Group LLP. “You can copyright your code, but the copyright will only protect against line-by-line copying of the code. A copyright will not protect against a competitor’s reverse engineering of your app. A patent is the only thing that’s going to stop them from taking your idea.”

A copyright may prevent competitors from releasing an app that is identical to yours, but it can’t stop them from piggybacking on your idea to create a similar program, and even using your own work against you.

“It would be easy for someone to take your idea and run to get a patent,” Kwak said. “Although only a true inventor of the idea is allowed to file for a patent application, you would have the burden of proving that they took your idea and ran to the patent office.”

Kwak points to popular ride-sharing service Uber as an example of the importance of protecting a great mobile app idea. Competitors began launching similar apps soon after Uber’s business took off, forcing company operators to fight for customers by dropping rates and raising fees paid to drivers.

The company has since taken actions to address the issue, but there’s no guarantee that those efforts will be successful.

“Uber has filed for numerous patent applications to their app, and it remains to be seen if they will be successful in obtaining patents and enforcing them against the competition,” Kwak said. 

So why doesn’t every app publisher patent their programs? For many developers — most notably startups — the costs in time and money can be more than they’re willing, or able, to spend.

After filing, your application will typically sit at the U.S. Patent Office for around two years before it’s examined, according to Kwak. And after that, the chances are good that it will be rejected after its initial examination. If that’s the case, your attorney or representative can then begin the back-and-forth process of trying to convince the office that you should, in fact, be granted a patent. 

All that wrangling can not only stretch out the duration of the process, but can also raise its price tag. You should expect to spend anywhere from $5000-$10,000 just to file a patent application — a total that can spike significantly if your application is initially rejected, leading to a lengthy examination.

“It’s not an inexpensive process,” Kwak said. “In a best case scenario, your patent application will be immediately allowed to issue into a patent which would require minimal cost above the cost of filing the patent application.”

In addition to financial concerns, the patent approval process presents a security dilemma for developers who are apprehensive about including their app’s details on their patent applications. 

“Very important algorithms can’t really be withheld from a patent,” Kwak said. “You have to make a decision. Do you want to file a patent for this application, or do you want to keep it a secret?”

Others may have more altruistic reasons for avoiding the patent process, namely a desire to promote the free exchange of ideas and sense of community within the tech industry.

“Computer software programmers

[can be] very humble people,” Kwak said. “They think that everything should be free, and think patenting hinders the tech process.”

While such a motivation is admirable, Kwak is quick to point out that there is a good chance that some of your potential competitors will fail to share your sense of camaraderie, and may attempt to use your work as a springboard to easy app store success. 

“It doesn’t make sense to take all this time to create software to have someone take your idea and copy it,” he said. “They won’t have to invest the same time and resources. Patents protect your investments.”

If you do decide to file for a patent for your app, Kwak recommends following these tips:

– Make sure your app is unique, and provides benefits beyond the obvious. Patent examiners tend to reject apps that don’t break new ground, and serve only needs already filled by existing programs.

“A patent attorney can conduct prior art searches for you to help you decide whether your app is unique,” Kwak said. “If you want to save on attorney fees, you can conduct patent searches yourself on Google Patent.”

– Once you feel confident that you have an original idea, or that your app will significantly improve upon already-established processes, call a registered patent attorney (if you haven’t already done so). Patent lawyers are required to have bachelor of science degrees, so you can feel confident you’ll easily find one who understands your industry. Other types of attorneys don’t face that regulation.

– Keep the details of your app to yourself. Simply coming up with the idea for the program isn’t enough to guarantee that someone else can’t steal your concept and try to beat you to an app store. 

“Make sure you do not publicly disclose your idea until you have a patent application filed,” Kwak said. “We recently went to a first-to-file country, as opposed to a first-to-invent country.”

– Give serious thought to copyrighting your work as well, and strongly consider trademarking your company’s name and logo, to further protect your interests as you develop your app.

– Know the timetables involved in the patent process. You technically have one year after public disclosure to file for a patent, but during that time period, you’ll face the burden of proof if someone beats you to the punch and files for the invention. After your patent has been approved, it will remain in effect for 20 years from the date of filing.

Whether or not you ultimately decide to file a patent for your app, you owe it to yourself to explore your options regarding the protection of your intellectual property. You’re going to have to work very hard to carve out a slice of success in the mobile marketplace. Don’t let someone else reap the rewards that result from your efforts.

Special thanks to Standley Law Group LLP partner James L. Kwak for his contributions to this post. Standley Law has been named the number one patent firm in central Ohio by Columbus Business First. The firm’s experienced attorneys are happy to answer your questions about intellectual property. Click here to visit the Standley Law Group LLP website.