Are Apps Patentable?

Yes. Apps for iPhones, Android phones and other smart phones and devices may be patentable under the United States patent laws. An app is a piece of software and like other types of software may be granted patent protection. However, one of the biggest obstacles to patenting software is whether the software is patentable subject matter under the law (35 U.S.C.  101).

Patentable subject matter does not include mathematical algorithms and expressions, laws of nature and abstract ideas. A test courts use to determine if software and apps are patentable subject matter is the machine or transformation test. This test requires software to be tied to a particular machine or apparatus, or to transform an article into a different state or thing.

Typically, the goals of a business and how an app is used will help determine what type of protection is most suitable for an app. Depending on the shelf life of an app, filing for a utility patent may not be the best option for a business. A utility patent offers broad protection for an app. However, a utility patent may be costly and take years to acquire. Because of this, I often recommend alternative forms of protection to protect apps. For instance, apps may also be protected by design patents, copyrights and trade secrets.

If you have any questions regarding this article or for more information, please feel free to contact me.