This article is written by Shivangi Ghosh, from Amity Law School, Delhi. The article elaborates on relevant Intellectual Property rights in mobile applications and how to protect duplicity.
Mobile apps are a significant part of modern day-to-day businesses. It acts as the part of businesses to be a complete model for business. Mobile apps have taken over the rapidly evolving technology. Intellectual Property is involved in mobile applications and there are various instances where replication can cause serious damage to the company. The effective way is to strategize the Intellectual property right of companies.
Granting of Patents in Mobile Apps
Patents are ordinarily associated with industrial products and processes and not with software-based items. However, with the recent transition of the legal landscape of the patent aspect where the software-related inventions are now eligible for patent protection, as long as they satisfy the requirements of patent law.
Problems faced by the Mobile Apps in granting of patents
- Software-related inventions don’t usually conform to the specifications required by the Patent eligible matter.
- The application process may take on average a few years, and there may be instances where the application is contested at various stages, which considerably prolongs the process.
Procedure for granting Patents in India
Software is not given protection under patent but shall be protected only when attached with novel hardware, an invention that is unique and capable of industrial use.
Like all intellectual property rights, patents are territorial in nature and thus are only valid in the jurisdiction in which they were granted.
The term of a patent lasts up to 20 years from the date of filing which gives the owner exclusive rights to use, sell, make the invention. After the expiry of the term, the 3rd party may incorporate the same features in their products and implement various another patent-eligible subject matter.
Scope of the Patent
The patent specialist drafts a broad claim so that any challenge that may arise whilst make the patent can be challenged by the Patent owner. The narrow claim is subsequently added by the patent specialist.
Important points that patent specialist have in mind are:
- Narrowly drafted claims are likely to prove less useful in fending off competitors, while broadly drafted claims are more susceptible to challenge based on lack of novelty.
- The patent is granted to the subject matter which is new, not obvious, and capable of industrial application.
- Besides, the subject matter should not fall under one of the categories excluded from patentability.
- The requirement of novelty means that patents should only be granted to something that has not been there before. There is no point in granting an exclusive right in relation to something that already exists.
- Patent examiners in patent offices around the world have access to databases that enable them to make such assessments. The requirement of the non-obviousness or inventive step means that it is not enough to establish that the invention is new, but it must also be shown that the invention has involved a qualitative difference when compared to the state of the art so that it is not obvious to a person skilled in the relevant field of work.
- The novelty requirement ensures that there is a quantitative difference between the invention and the prior invented art, the non-obviousness is a prerequisite for the qualitative difference. It is aimed at encouraging is thus clear that the programming codes are protected under the copyright law and the operational methods are not protected under the same law. Whereas if the programming code is reverse engineered, the protection of trade secret is granted.
Grant of Patent is not Impossible in case of Mobile Apps
The patent becomes essential for the protection of software as the patent works on the scope and not on how one developed the work but the only aspect that patent law protects is the qualitative difference. But, for being granted a patent, it is necessary that the program is not merely an algorithm but is a technical invention that is eligible for such a grant of patent.
As per Sec. 3 (k) of the Patent Act, 2002, computer programs cannot be patented per se.
Computer software should not be the following programs or algorithm to be granted protection under the patent law:
- Business method, mathematical method, or algorithm;
- A computer program.
However, software can be patented if it is attached to an invention and that it is a component of such an invention. To avoid the claim of sec. 3 (k) it is essential to show that hardware is an essential part of the invention along with the software or computer program.
‘Whether mobile applications are patentable or not,’ has been a long due question for the past many years. Well, mobile applications are software interacting with various servers while running on hardware that becomes a technical invention of hardware.
Nonetheless, in general, the technological ecosystem of mobile apps is a subject matter for patentability. For instance, a virtual keyboard was protected under the patent law. Even front end elements in mobile applications are protected for their novelty. Besides, the ways the mobile apps communicate with a server or other mobile devices may again list under a subject matter of patentability the only tough part is to prove the interaction with the hardware.
Trademarks in Mobile Applications
The Logo, name, and brand of the mobile application give the Company an identity in the market. The Company should aim at protecting the mobile app by getting the name, logo, and brand registered under the Trademark law.
It becomes useful in cases like:
- Online promotion
- Customer identification and brand awareness.
Therefore, it is important to secure the name and logo as a registered trademark so that no 3rd party infringes the name or logo of the brand. The goodwill shall stay attached to the registered name only.
Copyright in Mobile Apps
Copyright protects images, visuals, or any other type of literary works that are created from the app. It also protects computer code under Copyright law. There is no need to file for copyright registration because in Copyright law, as soon as the subject matter is created. The Owner is the rightful copyright owner of the subject matter. But it is advisable to get it registered to protect it from infringement by a 3rd party.
Features that are protected under the law in regards to the Copyright law
- That can be considered artistic such as images, videos, sound, etc.
- Any literary work that comes under literary and artistic work which is new and unique.
- Work shall also include the user interface, layouts, images, etc.
Copyright Registration acts as prima facie evidence that shall be beneficial at the time of infringement and if not protected irreparable loss can happen to the brand and the company can face a major loss which can be losing the case as well as major earnings.
Design protection for Mobile Applications
Protection of design is not internationally uniform and there are variations in terms of protection. The type of trade dress that is protected is the outside appearance. Design law aims to mainly protect the external appearance as seen with the trade dress of the app.
The design of a mobile application’s Graphical User Interface (GUI) may be significant for its appeal to its consumer. There are jurisdictions that have design patents, the registration process is different in every jurisdiction. In other jurisdictions, there is the possibility for a registered design outside of the patent law framework. A design cannot be a functional design and what is considered functional is a matter that varies in every domestic law.
Other Important Agreements during the development phase of an application
Non Disclosure Agreement
The other important agreement that should be taken under consideration is the Non- Disclosure agreement. Whenever a business is developing, there are plenty of other parties apart from owners involved in the process. In this case, During developing a mobile application, the developer, or the developing agent team. The non-disclosure agreement protects your business idea and prevents it from going out. In case of disclosure, a case can be filed to recover for your loss that you went through.
A well-written nondisclosure agreement requires the team that reviews and working on your idea of the mobile application to keep what they see secret. If your team violates, a large sum of money can be extracted from the infringer. This doesn’t just apply to outside companies. If you are fortunate to have your own staff, make sure they all sign NDA’s before beginning to work on your idea or any new idea that comes along the way.
An NDA prohibits developers and employees from discussing your project over a specified period of time which often for more than 3 years. Non compete agreement comes into the picture when the developer or any person from the team leaves your team. This is a frequent occasion where the company can be threatened. A separate agreement or a clause of a non-compete should be added so that the 3rd party does not involve in any project that can prove to be your competitor in the future. The sensitivity of the project may warrant having a distinct Non-Compete Agreement or adding a Non-Compete Clause to your NDA.
The Non-Compete is sometimes referred to as a negative covenant. ANy confidential information cannot be used for any other business or project that can put your company in jeopardy. The team must agree that they will not exploit in any way the confidential knowledge or information from the project they worked on. It can be anything ranging from the client list, user interface, mobile app details any other programming code.
Concept of the Mobile Application Cannot be protected
The concept of an app cannot be protected. A specific game such as the snake game can be protected if it’s exactly replicated but if the same snake game is modified in another type of game. It is not likely to get protection.
What can be protected?
- The name.
- The brand and logo.
- If exactly replicated, then the app can be protected.
What cannot be protected?
- The idea of the app.
- The concept of the business.
As long as there is enough of a distinction, it shall be allowed.
Proper Strategy to be devised
Mobile applications are a rapidly moving technological actor that is continuously changing as it comes up with new aspects. Due to this, mobile apps that may appear as part of business become a whole business to manage. Apps like Ola and WhatsApp are the most common examples where mobile apps have become a proper business. A proper strategy should be devised to protect the mobile app from potential infringers and extract maximum profit.
Mobile apps have become the sole mode or part of business majorly in this rapidly evolving world of technology. The team should be working tight-knit so that the information is not disclosed to the wrong users which can jeopardize the business. The patent specialist should thoroughly explain the app so that strong protection is granted to the App. Finances and reputation are usually at extreme risk.
In the software and mobile app business, ideas are not that valuable. Intellectual property rights are important but it’s the execution of the idea that is more valuable than the idea itself. The marketing, financing strategies, and the promotion of the business play a vital role.
If you release a great app in the market people will try to replicate it too. The only difference that will help is the marketing and distributing strategies of the app that shall make you stand out in the market and nothing else. Most app stores avoid apps that are known to violate copyright laws as they want to avoid any kind of court roundups. This kind of activity tends to take place in foreign, developing markets – where illegal efforts are not likely to be noticed, reported, or enforced.
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