One of the most common types of enquiry we receive in our day-to-day practice is about patenting of smartphone (i.e. iOS or Android) apps. Indeed, if we had a dollar for every prospective new client who had rung up or emailed to ask how to protect their ‘million dollar app’ idea, we would have… well… probably more money than we have made from actually preparing and filing patent applications based on these enquiries! Because most of them end up going nowhere, once we have had a conversation about the pros and cons of patenting.This post will explain why. And it is not because smartphone apps cannot be patented – many of them most probably can be. However, for most inventors the appropriate question is not ‘can I patent my smartphone app?’ but ‘should I patent my smartphone app?’ This second question is difficult to answer without having a solid business plan, which is something that has rarely been considered by people calling a patent attorney because a friend or relative told them: ‘that is a great idea, you should patent it!’
These days, the Apple iTunes App Store and Google Play (the Android equivalent) are incredibly competitive marketplaces. According to recent data from app analytics specialists Flurry, there are over 600,000 apps now available from each of these markets. Wikipedia entries for the two stores place these figures for September 2012 at 700,000 apps in the Apple App Store and 675,000 apps on Google Play. Whichever figures are most accurate, this is an awfully large number of apps!
If you are going to make any money in these markets – whether by app sales, through in-app revenue and/or via advertising – you are going to have to get noticed first. And clearly there is much more to this than just having a great idea. (In fact, this may be the least important element, unless you are the sort of person who thinks that flinging kamikaze birds at green pigs with a slingshot is a ‘great’ idea!)
Ask not, therefore, whether your app idea can be patented. Ask instead whether it is worth patenting. This is as much a business question as an IP issue, and for many – perhaps the majority – of app inventors, the answer may well be ‘no’.
