Why Mobile Apps are not Patent-eligible?

Have you, as an inventor of an App, ever got to hear that Apps are not eligible for patents, at least in India, under section 3(k) of Indian Patent Act?

If yes, please stick. I’ll show you why Apps are not logically eligible for patents. Are all APPS not eligible for patent? or, are there some apps that can get patent? What are the hacks that can help you get a patent despite that apps are not patent eligible.

Apps are all around us as we all like to pick our smartphone and touch on an icon and proceed to do what we desire—order online, consume media, establish communications—we are lazy enough to remember any URL/webpage, type it on browser, and wait for the website to appear. Right?

With this App culture, more and more people come up with new ways of creating online, app-based businesses. ?And, naturally, they want to foreclose any future competition and make sure that others don’t make similar apps and compete them. Which, make them think of protecting their apps somehow, and they land on the amazing PATENT Island.

But, when the inventor goes to a Patent Attorney to discuss the patent idea, their heart broke when they are told that mobile apps can’t be patented. They get discouraged, demoralized—even aggressive sometimes.

Some inventors are learned enough to refute the Attorney that his/her app is Novel, Inventive, and has an Industrial Application, which means it is satisfying the 3 well-known criteria of patentability, then how come it cannot get a patent.

In a sense, they are right---since the app is fulfilling the criteria of patentability, it should get a patent.

Let me tell you the logic why apps should not get Patent.

I divide a typical app into three units:

1)????? The User Interface (UI)

2)????? The Code/Algorithms

3)????? The Functionality between UI and code

You will be surprised to know that none of the above is a patent eligible subject matter under different sections of Indian Patent Act.

--The User Interface cannot be protected due to Section 3(l): Aesthetics/Look/ UI of an app cannot be protected under Patent regime--- Artistic work is not patent eligible under section 3(L). At best, it can be a subject matter of Design/Copyright Registration.

--The Code cannot be protected under Section 3(k): Software or Algorithm, per se, i.e., the actual code of a software or an algorithm cannot be protected u/s 3(k) of Indian Patent Act.

--And given that most functionalities, present in a typical app, are oriented/inclined toward business flow or business administration, i.e., mobile apps are meant to ease the life of customers, to offer better and convenient service, to offer privileged services, etc. For example, Swiggy, Zomato, Blinkit, Bigbasket, etc. have mobile apps for adding convenience such as hassle-free ordering experience for customers, such as item selection, similar/better item suggestion, checkout, payment, etc., which have now become trivial or generic, so apps with these generic functional aspect cannot be protected. Therefore, unless an app has any new/non-obvious ‘Technical Effect’ (such as Rapid Access to Database for faster results, Robust and Secure Read/Write Environment, Lower Latency, Better Processing speeds, etc.) cannot get a patent.

Which is why Zomato, Swiggy, Bigbasket, Blinkit do not have any Patents. ?Though, Ola does have patents---but, mind you, the patents are not for its app; instead, patents are for other functionalities—such as optimal route suggestion, trip price estimation, etc.

One more reason to clarify non-patentability of apps---Apps inherit/imbibe, or are deem to inherit/imbibe, a business method, which are non-patentable under section 3(k). Even a layperson can tell that what is the business model behind a given app---Swiggy and Zomato are into food delivery business, and Blinkit and Bigbasket are into grocery delivery business. So, it is natural for patent examiners to sense the business idea of apps and deny patents.

Imagine if a patent was awarded to Zomato or Bigbasket apps, we would not be able to see Swiggy, Blinkit, and many other businesses that make our life simple in one way or the other. Business monopoly is not good for the economy; hence, no patent. Especially in developing economies such as India.

Then how businesses can have edge over their competitors??

Patent are denied for apps, not for innovations in functionality app incorporate—Swiggy may not be able to get a patent for its apps, it is free to patent other innovations that supports the app, such as how Swiggy tracks its Riders’ location and presents to the customers in real-time. This can be patented and Zomato can be stopped from copying this feature if it has Novelty and Inventive Step.

Likewise, Blinkit’s 10 minutes guaranteed delivery must incorporate technologies that assist it in faster collection of ordered products, faster packing, and faster allocation to delivery person.

So, for all those inventors who are thinking of getting patents for their apps, I’d like to emphasize that better to focus on patenting the novel and inventive functional aspects that assists working of your app and can give edge to your business. If you don’t have such aspects, better you go for protecting your app’s identity through Trademark, Design, and Copyrights protections.