Apps have become a very important factor in our everydays life. But how is the legal situation for developers of modern applications? Is it possible to patent an app in Germany or in Europe? And if yes what does it cost?
Apps, that means application programs for smartphones, tablets, watches and other devices, are vital parts of our daily routine. Solely for the most known mobile system softwares iOS and Android are currently over three million apps availabe.
For nearly every circumstances exists an appropriate application. It?s no surprise that the developers of new creative apps are highly interested in protecting their innovations with a patent application against imitators. But how is the legal position concerning in this matter? In the following post we deal with the patentability of apps in Germany and Europe.
What is a patent?
A patent is a commercial property right for an invention. In order to get a patent, an application has to be handed in at the German Patent and Trademark Office (GPTO). While the patent arises through an official prosecution history, it is a private civil right in its impacts. Actually the patent is comparable to property. It gives the patent owner the right to prohibit any other person the commercial use of the invention.
Indeed only for technical inventions patents are granted. Therefore the question arises whether an app is rated among such technical innovations. Beyond doubt new, original apps arise consistently. Nevertheless amongst experts it is controversial whether and to what extent software programs, in which apps are ranked, can be patented.
Is it possible to patent apps?
According to the German and European patent right, software ?as such? is basically not patentable. This means that it is not possible to patent a certain application program in total.
The Federal Supreme Court (BGH) clarifies in its jurisdiction that the patent right serves to protect and to benefit new and industrial applicably solutions on the field of engineering. A patent therefore is only possible if the software solves a concrete technical problem. In this case the underlying procedure which can be implemented in the computer program can be patented.
What does this mean for an app? The jurisdiction relating to conventional computer programs can?t be transferred to modern apps. The precondition is that the app does not only include an innovational function but in addition to that it has to solve a certain technical problem. For the most apps this is not the case for what reason only a vanishingly small amount is patentable.
Whether a concrete app is patentable depends on the details and various individual issues. The developer therefore is well-advised to approach to an attorney who is specialized on IT right.
Which possibilities do developers have?
Now the question arises how developers can protect their app legally anyway. There are two possibilities: The copyright as well as the trademark or design right.
The copyright protects a work against undesirable replication, distribution and edits. The protection indeed doesn?t compromise the idea behind the app.
That means that the concrete source code is protected against unauthorized usage and replication, indeed the developer can?t protect his app by means of the copyright against imitations. The trademark right offers the developer the possibility to protect the name of your app and also the logo.
The trademark owner has the right to prohibit others the usage of your trademark. The trademark protection is possible in all of Germany, Europe and even worldwide.
The app name can be registered by the developer as so called word mark, the logo as word-/figurative mark. The application takes place at the German Patent and Trademark Office and if desirable it can be done online. You get all the important information here.
If a worldwide protection is requested, the application takes place at the World Intellectual Property Organization.
Whether a name and a logo is registered as trademark however depends on several preconditions. For example it is not allowed that name and logo are already protected by trademark law. It is advisable to conduct a trademark research in advance or to let it conduct by an expert in order to be sure that the own app name does not offend older trademarks.
Furthermore the legal protection of the optical appearance, that means the design of the app, can be achieved via the Law on the Legal Protection of Design. Also in this case a protection is possible German, Europe and worldwide.
Also in the trademark and design right it depends on the individual case, so that the developer should definitely ask an attorney who is specialized in media and trademark right for help.
How much does an app-patent cost?
The copyright arises from the creation of the work as intellectual property and is therefore not linked to costs. Indeed expenditure emerges of course if the developer proceeds against the unauthorized usage or distribution of his work.
In trademark or design protection there are diverse fees: The application at the GPTO for up to three so called Nice and Locarno classes costs up to 290 Euros. With the classification the application determines for which products and services a trademark shall be registered. For applications in further classes additional 100 Euros per class arise. The protection duration amounts at first ten years from the filing date on. The extension costs 750 Euros (including the class fee for up to three classes).
For a European application or worldwide trademark and design protection additional fees come up: Starting from 900 Euros can be reckoned in for an application for a community trademark. The protection includes up to Nice/Locarno classes and subsists approximately for 10 years. For each further class 150 Euros arise.
Get personal, professional advice for your possibilities. The attorney will also enlighten you about the costs and fees.
Hint: The portrayed costs only refer to those fees which are directly paid to the respective office! If you ask an attorney for help, he will ask for an additional professional fee for his services.
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