With increasing use of mobile devices, innovation has shifted to mobile computing. Particularly, innovators are striving to develop applications running on mobile devices on the go. As the focus is shifting to gain commercial success in developing mobile applications, many application developers are puzzled if mobile applications can be protected by means of a patent.

Majority of the mobile applications available on Apple’s Appstore and Goolge’s Playstore are no different from other software. As the mobile applications are nothing but software innovations, they are eligible for patent protection provided they satisfy the requirements specified by law. Generally, mobile applications can be categorized into two – applications that control the mobile device itself and applications that connect to a remote server to process the data. For example, an application used to control hardware of the mobile device is patent eligible. Similarly, an application running on a mobile phone that connects to a remote server containing data that either stores the data or process the data to be used on the mobile phone is patent eligible.

Many mobile applications that connect to the server process the data at the server level and the data is then sent to the mobile device. For example, a music recognition app records a segment of the music to be recognized and sends the audio clip to a server for process intensive analysis and recognition. The server then sends back information to the mobile device. For example, the server may send the name and description of the music track identified, along with links to purchase or share the music track.

In other words, to be patent eligible, the mobile application should make the mobile device function in a certain way. The software code itself that achieves the function is not patent eligible. However, the functionality achieved by means of the software is patentable. On the other hand, the software code doing it can be protected under copyright.

After developing a mobile application, it is important to understand the patentability criteria to ascertain whether a patent can be filed for the subject matter or invention. Generally, patent offices across the globe have specific criteria for respective jurisdictions to determine eligibility of the patent. To grant a patent, the patent office performs a search. The patent office performs the search to determine whether the mobile application has ever been patented, used or published before. One must understand that the patent office searches whether subject matter of the mobile application is used or published anywhere in the world, not just in the jurisdictions where the patent application was filed. In addition, the patent office checks whether the mobile application solves a particular problem in a technical field and produces a useful, concrete and tangible result. After determining that the mobile application submitted is not disclosed or used anywhere in the world, solves a particular problem in the technical field, and has commercial application/utility, the patent office may grant the patent for the mobile application.

As known, success of a mobile application depends on which markets one caters to. For example, consider that a developer in US wishes to publish the mobile application in Appstore of Europe and Japan. Then it will be appropriate for the developer to file a patent application in US, Europe and Japan. In such a scenario, the developer may consider filing a provisional patent application in US, and wait for a year to see how the mobile application is performing in other markets or countries. After analyzing the performance of the mobile application in each market or country, the developer may take priority from US patent application and can file patent application in the country in which the mobile application is doing well, within one year from the date of the provisional application. On the other hand, if the developer is sure to file in multiple jurisdictions considering the mobile application to be a breakthrough innovation or for obvious business outcomes, the developer can file a complete patent application to protect the innovation. To protect the mobile application in multiple jurisdictions, the patent application should be filed in each country of interest as there is no worldwide patent protection.

Patenting mobile applications provides the greatest commercial benefit if the expected lifespan of the technology substantially exceeds over the years. Further, it is worthwhile to file patent applications if the technology of the mobile application is of great interest, appeal or application and if there is a scope for competitors to use the technology in their own applications.

One must take due care before filing a patent application for an invention which underlies a mobile application, in both the mobile device and the remote server. This is because; each patent office has different criteria to grant patents for computer related inventions. Also, the business outcome expected from the mobile application shall be analyzed in the long run. Filing patents in multiple jurisdictions will cost a considerable amount of money. However, what if the developer just invented the next blockbuster? Therefore, the developers should consider filing patent applications for their innovations to showcase their innovation to the world and to protect themselves from competition.

Author: Chandrasekhar Raju