Can I protect my mobile app idea?

By Danie Pienaar

The current boom in the development of smart device technologies and mobile applications (apps) during the last few years has created an amazing platform for entrepreneurs to develop new mobile apps, that provide users with unique services which, before the development of smart devices, were not possible. 

By developing a popular mobile app, entrepreneurs are able to generate earnings in a variety of ways. One of the more popular ways is to make use of so-called in-app purchases. For example, the app can be made available free-of-charge but with only limited features. In order to gain access to additional features, the user can make an in-app purchase, which then generates income to the owner of the app. A good example is the popular game Clash of Clans that allows users to purchase so-called ‘gems’, which is a type of currency in the game, that can be used to buy resources or conduct upgrades, thereby helping players to progress in the game.

Now the question is, can one protect the unique functionality of a mobile app in order to help prevent others from creating apps that work in the same way? Although copyright automatically protects the actual computer code from the moment it is programmed (ie, the moment it is reduced to material form), it only protects against the unauthorised copying of the code and not the actual functionality of the app. Copyright will therefore not prevent others from reverse engineering your app and then programming their own app that functions in the exact same way.

If you want to protect the unique functionality of an app, the only way is to apply for a patent. Generally speaking, the patenting of software-implemented inventions is quite a controversial to­pic, with many ‘pro open source’ people believing that it should not be allowed, since it curbs innovation rather than promoting it. However, that said, the patenting of mobile apps has received a lot of attention in recent years, especially in countries such as the United States  (US). 

The two main requirements for patent protection in South Africa, as well as most other countries in the world, are that the invention should be novel and should not be obvious to a person skilled in the field of the invention. Therefore, if a mobile app functions in a unique way, then it may well be patentable. In this regard it is important to bear in mind that in order for an invention to be novel it should, among others, be kept secret until a patent application has been filed. 

The patentability of software-implemented inventions, such as mobile apps, varies from country to country, since the national patent legislation of each cou­ntry differs. The patent system in the US (as well as in some other countries like Australia) generally have quite a favourable outlook on software-implemented inventions, which is the reason why the US Patent Office has received quite a large number of patent applications that relate to mobile apps. Some other countries or regions like Europe tend to take a stricter approach to the patentability of software-implemented inventions, and generally requires that the invention should solve a technical problem. If an app therefore solves some technical problem, then it may well be patentable in Europe. 

There has unfortunately not been any case law to provide us with guidance regarding the patentability of software-implemented inventions in South Africa. Our patent law is, however, mirrored on European and United Kingdom patent law and the approach taken in Europe may therefore be a good guideline for South Africa. However, that said, the South African Patent Office is a non-examining Patent Office, which means that if a complete patent application is filed and all the formalities are complied with, a patent will be granted. If another party then wishes to invalidate the patent, the onus will be on them to prove it.

To conclude, although software patents may be considered by some as controversial, the fact of the matter is that if you decide not to apply for a patent for your mobile app, even though it may have a unique functionality, you will need to be content with the fact that the market will effectively be a free-for-all for others to create similar apps.

Danie Pienaar BEng (UP) LLB (Unisa) is a patent attorney at Spoor & Fisher in Pretoria.