are Apps Patentable?

DEREK FAHEY, ESQ.

Applications for iPhones, Android devices, and other smart devices may qualify for patent protection under United States law. Because an app is software, the same patentability principles that apply to other software inventions also apply to mobile applications.

Patentable Subject Matter

One of the principal challenges is whether the app claims patent-eligible subject matter under 35 U.S.C. § 101. Mathematical algorithms, laws of nature, and abstract ideas are not patentable by themselves. Software claims generally need to be tied to a practical technological implementation rather than merely reciting an abstract concept.

Choosing The Right Form of Protection

The business goals, expected product life, and way the app is used should guide the protection strategy. A utility patent can provide broad protection, but it may be costly and can take years to obtain. For an app with a short commercial life, that timing and expense may make other forms of protection more practical.

Alternative Protections

Depending on the product, an app may also be protected through design patents covering visual features, copyright protecting original code and screen content, and trade-secret protection for confidential methods or source code.

A coordinated strategy can combine these forms of protection based on the app’s commercial value and expected lifespan.