Can You Patent Software Apps?

Rich Goldstein

Founder & Principal Patent Attorney
computer code on a computer screen

People often come to me that are developing a smartphone application or a software application, the software product, the web application, things of that sort. And…

…they’ve already gotten a lot of misinformation that has them confused about things like, can they actually get it protected? When is the appropriate time to seek protection, is a copyright inappropriate form of protection rather than a patent?

So the purpose of this blog post is to really give you the right information about pursuing a software patent about pursuing a patent on a smartphone application or any related technology that you might be developing and are looking to protect.

One of the most common questions that people have that are developing technologies like this is, is a patent, the most appropriate form of protection. Oftentimes they’ve heard that they can’t patent an idea or that they should get a copyright to protect the software.

I’ve looked around at the various blogs and I’ve seen people chiming in with their own beliefs about what’s patentable and what’s not patentable, and it really could get very confusing.

I’m guessing that you’ve probably seen some of these discussions and are now looking to get the right information. Often what we’re talking about when we’re protecting software or a smartphone application is something known as a software patent.

The software patent doesn’t actually exist as a category of patents. It’s just been a term that’s been adopted over the last couple of decades since it’s been possible to patent software, but the key to protecting software is that it’s protected as a method it’s protected as a process.

It’s protected as a series of steps. That’s distinctive from what other applications are doing, what people are doing when they interact with the applications that the software is performing, that the person who interacts with the smartphone is performing.

So what we’re looking to protect then when we’re protecting software smartphone applications, web applications is a distinctive series of steps. What it covers then is the distinctiveness in those steps.

If what you have is something that seems to be distinct in the way in which it operates, then it would be a likely candidate for a patent.

We protect the distinctive series of steps by filing a patent application that describes the overall system that describes the details that gets into the nitty gritty of what’s distinctive about this process.

Now, in order to effectively figure out what approach we should take when filing that patent application on software, a smartphone application or web application is to do research. What we do is we research all the patents that exist.

What we’re able to do is find out what are the closest ideas to what you have that would impact not only if you should go ahead and file this patent application, but really how we should focus the writing of the application and what we should emphasize, because we have a lot of latitude in what direction to go with a patent application.

When we know that this part of it has been covered by someone else and this part of it has been covered by someone else, then we see, okay, we’ve got a pathway here through which we have some distinctiveness for your process, and that’s where we’re going to focus our attention.

One thing to keep in mind though, with the research is that it’s not perfect. There is a risk that there is something that’s being developed concurrently. That is something that’s already been applied for, but hasn’t yet been approved in a rapidly developing area.

Like the ones we’re talking about, there are a lot more things being developed at any given moment. Then we’ll find it in the pattern record and there are also patent applications that are relatively recent and haven’t been published that could be filed already.

We won’t know about them developing your project, being an individual entrepreneur, being a small business, you are in exactly the same shoes, in exactly the same situation as these bigger companies, every company out there, even multi-billion dollar companies that are releasing products and putting billions into those product releases.

They can’t be sure either about what patents might be popping up in the next year or two. Someone else might end up getting a patent on this technology, but once again, you have companies investing billions of dollars in developing products with this, as the reality, the judgment that most of these companies take is that even though you can’t perfectly search the prior art, it makes sense to have the right research done in the beginning to find out as best as they can, what the situation is.

To go ahead and get an application filed, that’s really focused on the best approximation on what makes their idea, their process, the system special. The key though is doing what they can to protect what they can so they could go ahead launch their products.

And of course, venture capitalists are very interested in what patents you have if they’re going to fund a project.

It makes the venture capitalists happy to know that you have patents on the specific portions that make the idea special.

In sum, what you really want to do is isolate what portion of the system that you’ve created. The application you’ve created is distinctive from what other people have done that you know of so that we have an initial sense of what we believe are the distinctive steps and distinct, distinctive parts of the process.

Then we want to do the right research to find out as best as we can, how close other people have come to those steps.

Then we want to file an application that’s appropriate for your situation to, in a sense, drop anchor, and establish priority for what you’ve created. Then as your business develops, take whatever steps are appropriate to continue that process to secure the protection, to cover any future variations that you come up with.

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