As of March this year, Android users were able to choose between 2.8 million apps and Apple's App Store remained the second-largest app store with 2.2 million available apps. This is a vast market, and, whilst many, many apps make little or no money for their developers, the odd one may just be gold dust.
So how best to protect your creation, if you think you have just come up with the next TinderTM or Candy CrushTM?
When we first meet developers, we often hear the word “patent” mentioned. A patent, once obtained, provides 20 years of protection in the UK, so it is worth some consideration at least. For something to be capable of patent protection, it has to be new, contain an inventive step and, essentially, be capable of technical or industrial application. However, the Patents Act 1977 states that a patent will not be granted for "a program for a computer" to the extent that the patent relates to the program "as such". What this means is that it will be trickier to get patent protection for an app’s underlying software (though, in practice, patent claims for software have sometimes been accepted by the UK and EU patent authorities). It may be that the overall functionality of the app meets the criteria for patent protection, but it should also be remembered that a patent application may be a costly and expensive process, which is not necessarily justifiable when the new app is still an unknown quantity in terms of future commercial success.
Given the position on patents, the best route for protection of an app is likely to be copyright. Provided there is a sufficient degree of originality (and the requirement for originality is not that stringent), copyright can both protect the way in which the app presents to users – images, on-screen text, audio and so on – and the source code or, in its machine-readable form, object code in underlying software. Copyright arises automatically in a work capable of copyright protection, and will generally last for 70 years from the end of the calendar year in which the “author” of the work dies. There is no statutory requirement for copyright owners to use a copyright notice (“© [name of copyright owner] [year of first publication]”) but it will provide both a warning to possible infringers and may be useful, from an evidential point of view, if there is a claim against a third party for infringement.
Following on from earlier mentions of TinderTM and Candy CrushTM , registered trade mark protection can often be an essential part of the overall IP protection for an app. In these two cases, the name and distinctive branding, such as any logos and slogans, is fundamental to the goodwill and value created in the app, and, with any app, these features are all potentially capable of trade mark protection.
Finally, it is worth mentioning UK registered design rights. It may be possible to register certain elements of an app (if they are “new” and have individual character), such as get-up, graphic symbols and typographic typefaces, as registered designs. Registration gives an effective 25-year monopoly in the design.
The main point of all of this is that app developers must give proper thought at the outset about IP protection for their apps, to ensure that, if they achieve commercial success, all the time, resource and money involved in developing them and getting them to market isn’t wasted when someone else nicks the idea!