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Monday, November 7, 2016

Can I Patent My App or Software Idea ?

This is a question that we have been asked a lot over the nearly 17 years that we have been creating software applications (apps, functional websites etc) for clients all over the place.

Intellectual Property, or "IP", can be a bit confusing and it may be a good idea for you to talk to a solicitor for more specific advice once you get down the track a bit further with your idea, but we're happy for you to benefit from our experience with patents and copyright law at any time so here's a little of what we know.

The answer is that, yes, sometimes you can actually seek a patent for your app idea - but not generally for the app software itself.

You see, apps are software which means that the lines of code that are written by software developers such as ourselves, are controlled by copyright rather than patents. Generally, if you hire us to do a job (create an application) we will assign the copyright to you so that you can freely alter it, or have others alter it in the future without worrying that we will try to claim ownership over that code.

If you have created a whole new way of doing things - or even if you have just come up with a unique way of doing some part of an existing process - then you may be able to apply for a patent for that process itself.

Patents, according to the definition that IP Australia provides are "legally enforceable right for a device, substance, method or process" and for your application to be successful, "your invention must be new, useful and inventive or innovative".

The key thing with patents - aside from making sure that you actually have something unique that someone else hasn't come up with before - is that they let you establish a "Priority Date". This is the date at which you have been formally acknowledged as having come up with an idea and is usually the date that your application was approved by IP Australia.

In Australia, there are 2 types of Patents that can be relevant to your software idea:

The Standard Patent ("Invention")

This is the traditional type of patent wherein a full "Examination" is performed by IP Australia to ascertain if your idea has been invented by someone else before yourself. This process is the more involved (and more expensive) of the two types of patents but gives you better protection and lasts up to 20 years.

If you are granted a patent, you own the exclusive commercial rights to your invention.

For a cheaper alternative to get started, you can apply for a "Provisional Application" which gives you a sort of hold for 12 months while you consider whether you want to go through the process of a full patent application process. If before that 12-month period expires you decide to apply for a full patent (and assuming that patent is granted) then your Priority Date is established as the date of your Provisional Application rather than at the time of the full application.

You can apply for standard patents internationally either by filing in each country, or by filing through the Patent Cooperation Treaty (PCT) which gives you access to 148 countries (including Australia, of course).

The Innovation Patent ("Innovation")

This is a newer style of patent application that was introduced a few years ago by IP Australia and can be ideal for software and other "fast" technology-based ideas.

The idea here is that it's not so much about "invention" but rather it's about "innovation".

So, if you have come up with a new way of performing an existing process - but have made it better in some innovative way - then you can apply for an Innovation Patent.

Innovation Patents aren't searched ("Examined") by IP Australia so the cost is far less ($180.00 at the time of writing) and they only last for 8 years.

Examination by IP Australia is optional and can be requested by yourself or someone else who wants to challenge your patent in the future. If, at that point, your patent passes examination and is certified then you have an enforceable patent.

Typically, the process takes about a month for the patent to be granted and it usually takes about 6 months for an examination to be completed (if requested).

The documentation needed for an Innovation Patent is relatively simple, providing you have the right knowledge and forms (IP Australia are sticklers for using the correct formatting and margins etc in their applications).

We have helped a number of our clients to prepare the documentation needed for both types of patent applications and have been granted an Innovation Patent on our own concept called "AssessPal".

In the case of our AssessPal concept. our claims are that we are applying 3-D technology in a particular and unique to an existing process of assessing motor vehicles for damage. There are 3 separate claims (Innovation Patents can have up to 5 claims per patent). Check out our patent here.

An example of an accompanying illustration for our own "AssessPal" Innovation Patent application
(Australian Innovation Patent #2016101591, granted on 8/9/16)

Give us a shout and grab a coffee if you'd like to discuss whether we can help create your new idea.