Software Patents

Your smartphone app may be protectable with a patent.

For decades, it has been possible to protect software in various forms with a patent. When you’re considering protecting a smartphone application, a web application, or a software product that you’re developing, you probably have a lot of questions. We’ve compiled a list of common questions and concerns that we hope you’ll find helpful as you weight strategies for pursuing your idea.

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The 8 Most Commonly Asked Questions About Obtaining a Patent on Software and Apps

When you’re considering protecting a smartphone application, a web application, or a software product that you’re developing, you can have a lot of questions. We’ve compiled a list of common questions and concerns that we hope you’ll find helpful as you weight strategies for pursuing your idea.

1. “How should software be protected—with a copyright or a patent?”

A patent is the most appropriate way to protect a process. And what you would be protecting are the processes—the distinctive functional features of your product that make it unique in the marketplace.

When you’re writing code, you know that you could write it in many different ways. You could fulfill the same objective by writing code in different languages, and with lots of different techniques of grouping instructions. The final product could be protected with a copyright. But then again, knowing that anyone could vary significantly how the code is written—without changing the way it functions at all—that doesn’t help you very much.

Copyright is kind of like a secondary form of protection, which is good for protecting thinks like the graphic design of a website. A patent is a way to protect the software, where the functionality has distinctive aspects to it and distinctive aspects to how it performs.

2. “Is what I have patentable subject matter?”

Patentable subject matter simply means that it’s the type of thing that can be patented. And typically software, applications, and things like this, are protected in the category known as process. It all comes down to whether there’s a process, whether there’s a series of steps that’s being performed and that’s distinct from what other people’s software has performed. If that’s that case, then there is patentable subject matter.

3. “When should I look into protecting myself—at what point during development?”

You should look into it as early as you possibly can in the development cycle. The main reason you want to discuss protection early is that a lot of what you find out through the research can shape what direction you go with development. And this can affect what direction you go with investment.

Any type of patenting consideration really should be done at an early stage or before significant investment has taken place. Now granted, you might already be beyond that. You might’ve already conducted significant work and moved toward launching the product—or actually launched it already. In a lot of cases, it’s still not too late. It’s really never too late to assess where you are and what you have.

At as early a point as possible, when you become aware that patents may play a role in what you’re doing, you should start the process of finding out where you are in terms of possible intellectual property (IP) issues and the potential for protection. You might not necessarily file a patent application. But you should at least find out where you are by having the right type of evaluation conducted.

4. “What is a realistic budget for protecting something like this?”

A realistic budget for protecting a smartphone application, software product, or web application, is somewhere around $15,000–20,000. That will vary depending on the value of what you’re seeking to protect. So if you have a pretty involved system that has a lot of potential, it might be worth setting a bigger budget, and it might actually take a bigger budget to have an attorney spend the time really going into the proper level of detail to adequately protect what you’ve created.

5. “How would my patent be of value to me, and why is it worth investing $15,000 or more?”

In the beginning, it’s hard to assess what is the exact value, but you have to look a few steps ahead. What are you putting into this project? What are you investing in developing it? What’s the value to you of getting that investment protected? What would be the cost to you of spending all this money on development, only to find out that someone else has copied what you’re doing and has launched a competitive product, and they’re now taking away a portion of your business?

Talk to anyone who has a company that’s been in business for a few years. Ask them, if they could go back three years and do whatever they possibly could to stop the competition they’re currently experiencing, would they do it? They would do it. Because farther down the road, it costs a whole lot more to thwart the competition. They’ve got to come out with better products, spend more on marketing—they’ve got to do a lot to hold onto their market share, let alone grow it.

So a lot of times, people will file an application, even though the odds of getting the patent may be less than 50 percent. They’ll file an application to do the best they possibly can to prevent that competition three years down the road.

6. “What goes into preparing a patent application for software?”

Generally, preparing the patent application involves having a patent attorney who knows how to write a good patent application AND is sufficiently familiar the technology to be able to explain what makes the idea distinctive. The patent application must explain enough of the details to provide what’s known as an enabling disclosure. An enabling disclosure basically means that the patent application discloses enough information so that someone in the field could re-create the invention without undue experimentation.

An attorney skilled in this area will be able to write a patent application that has the requisite amount of detail, and which also is structured in a way to protect the key, novel aspects of the invention. There’s a lot of skill and knowledge that go into making sure that a patent application is written so that it covers the detail that’s required—but also protects it on a broad scale, so that it’s protecting the overall concept as much as possible.

7. “What if I get a rejection?”

When we do receive a rejection, we have an opportunity to respond. In that response, we present arguments as to why the application should be allowable, or we present amendments or changes to the portion of the application known as the claims, which define the scope of the patent. Often, it’s a combination of both, where we’re presenting some amendments and we’re also presenting arguments as to how those amendments make the patent allowable—make the invention worthy of a patent.

While it’s very common to get a rejection, it’s also very common—and probable when we submit a response—that we’ll be able to convince the patent examiner to approve the application. So receiving a rejection isn’t that big of a deal. Because, very often, we’ll overcome it, and you’ll be able to have the patent allowed.

8. “How could I compete in an industry where Google and Facebook exist and I’m just a little guy?”

It used to be that if you wanted to come out with a new automobile, you’d have some pretty big players like GM and Ford to go up against. And it would be really difficult for you to set up a factory and a network of dealers and do everything that you needed to in order to successfully launch a new automobile in this country. But now, with the type of technology that we’re talking about—software and applications, almost anyone can jump in.

Sometimes this question is asked as a reason not to go ahead with a patent (in other words, “How could I compete with them?”). But often, the patent is the way in which you compete. A patent can be the thing that levels the playing field when you’re dealing with a big company, when you’re dealing in an industry that’s dominated by big companies. If you want to get in there, and you realize that you have something that’s unique, and if it’s patentable, that’s great! Because, if the big players want to jump into that particular market, they can’t just jump in and put lots of marketing dollars into overwhelming you. They can’t!

If you have the patent, then you basically have the key to that portion of the marketplace. And if they want to get involved, they need to work something out with you.

So if you see significant value in what you’ve created—enough to consider getting it protected—we invite you to really investigate whether this is something worth pursuing. To do so, you can call our office and discuss having a patent evaluation conducted. If it’s a match for us to work together, we’ll be happy to help you figure out whether protecting your idea makes sense for your goals, and then come up with an appropriate strategy for you and your idea.

Good luck!

Obtaining A Patent | Rich Goldstein



by our Founder, Rich Goldstein



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