IP STRATEGIES FOR SMARTPHONE APPLICATIONS
December 16th, 2015 by IPKM blog
The phrase ‘Oh wait, I think there is an app for that!’ has become common in the recent times. According to Flurry Analytics, almost 90 percent of mobile internet time is spent in apps in the United States of America. People prefer apps over mobile web since they are more convenient and easy to use. Owing to the increasing number of apps being launched everyday, it is essential to protect parts of the app at an early stage of the app development. There are different categories of Smartphone applications such as Games, Content & Media Consumption, Core Functionality & Utility, Social Networking & Communication, Business & Productivity, Lifestyle & others. Each of the applications can be classified into one of these categories depending upon the nature of the application. It can be seen that various components of Intellectual Property Rights are applicable to the different types of smartphone applications. For all the categories of smartphone apps, names, logos, distinctive images, slogans and characters can be registered as trademarks. The design of the app icon, the source code underlying the app may be copyright protected. The source code should not contain portions of open source codes or other codes because copyright protection may be cancelled in case those copyright holders claim infringement on their code. Design rights can be granted to the overall appearance, user interface, characters in the games and icons. In the following, we suggest effective IP strategies for each of them.
For gaming apps, the images (e.g. Angry Birds – Black, Blue, White, Yellow Birds), graphics, game environment, storyline (e.g. Angry birds – 50 True Stories of the Fed Up, Feathered and Furious), music, videos, icon designs can be protected under copyright law. The source code can also be protected by copyright, provided that it is original. Some of the components can get dual protection. They can also be protected by trademark rights. Examples are the Game icons (e.g. Candy Crush) and its various versions (e.g. SAGA, SODA), characters in the game (e.g. Angry Birds). Obtaining patent protection for games is challenging as different court decisions in Europe and United States of America insist the presence of technical character in softwares.
Content and media applications such as Flipboard, Youtube, Spotify, etc primarily contain information like a database collection of songs, videos, news, books etc. The core component of such applications is the database. The Database in the application can be protected by copyright protection and the sui generis database protection right in the EU. Copyright protects elements of a database that are a result of the personal intellectual creativity in selection and arrangement of contents. The sui generis database right protects the substantial investment in data collection, verification and presentation, not the creativity in making it. Databases which are created or operated by computer programs or algorithms are excluded from database protection.
Core functionality and utility applications basically perform general maintenance of the mobile like junk data cleaner, antivirus, antispyware, etc. These kinds of applications are more of technical nature. They may qualify for patent protection as they assist users for the maintenance of their device and solve a technical problem. Since the smartphone technology field is versatile, provisional patent applications may be useful for the prevention of competitors from copying and depending on the success of the application in the market, the owner may opt for the patent grant procedure or may withdraw the patent application.
For social networking and communication applications, the crux of such applications lies in its algorithm or the code base. Although algorithms cannot be protected through IP, specific novel aspects of social networking apps involving technical character can be patented. The functionality, design, methodology, as well as hardware innovations can be patented. While the source code can be protected by means of copyright, it should be noted that this protection does not extend to functionalities as such. Other technical aspects such as the format of data files, programming language used, etc cannot be protected by Copyrights. Thus, an effective Intellectual property strategy would be to file patents for the identified aspects, even though it may be expensive and time consuming. The strong protection offered by a patent is also used by social networking giants such as Facebook – they hold numerous patents for their technologies such as tagging digital media and generating feeds of stories personalized for members of a social network.
In the case of Productivity and Lifestyle applications, the architecture of the app and the underlying code base form the core of the invention. Here, the core component can either be a trade secret or if it is novel and inventive, eligible for patent protection. To avoid the risk of ideas being stolen through reverse engineering of the product, patent rights are the best possible option. If the application contains a unique and novel method of buying (like Amazon’s one click which is patented), then the unique method of buying can be patented. Owing to the vast scope of E-Commerce applications nowadays, it would be essential to patent the methodologies behind the apps to prevent unnecessary competition.
It can be inferred that various forms of intellectual property rights such as patents, copyrights, trademarks and designs are applicable to smartphone applications. Depending on the type of application, one or more intellectual property rights may be more relevant than others. Effective intellectual property law strategies for smartphone applications involves the identification of the nature of the smartphone applications and considering the relevant IP rights, keeping in mind various factors such as the time taken to obtain the IP right, the economy involved and the strength of the IP right in each case. Undertaking effective IP strategies at the earlier stages of development of the applications would benefit developers and other stakeholders to protect their application and eventually their ideas in this competitive market space.
By Eashwar Venkatasubramaniam and Nikhil Vidyasagar