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Ludmila Lisovskaya

Patent Specialist / Chemical Specialist

25 September 2019

Mobile applications for smartphones as a subject matter of patenting

A mobile application is a set of technical solutions, and therefore it contains a lot of potential subject matters of intellectual property.

The application has not only a program code, it includes particular functionality, a unique design solution, an interface, a music accompaniment, etc. It is no matter what operating system the mobile application has been developed for, according to Part 1 of Article 1259 of the Civil Code of the Russian Federation, it is a subject matter of intellectual property. Thus, any mobile application is equated to a literary work and it is subject to the provisions on the copyright. In order to register one’s copyright, it is not necessary to register the application, it occurs immediately after the publication of the development.

However, the developers of the mobile applications, as a rule, are afraid that their intellectual labour will be used by their competitors and they will fail to prove their authorship.

In this case, the developer is entitled to file an application with Rospatent for obtaining a certificate for the registration of a program for an electronic computing machine in the form of a program code or a trademark in the form of an image/icon. In this case, it should be remembered that when transferring the rights to this application to another person, it will be necessary to register such transition with Rospatent.

But in fact, one should not worry; the copyrights to the application arise automatically from the moment of the publication.

It is possible to obtain the exclusive right by registering a patent. However, you will manage to patent only a method or the methods of your software product as an invention, and an interface design can be defended as an industrial design. At the same time, the application itself (functionality) refers to the invention, and its design – to the industrial design.

In the case with the mobile applications as the invention, as a rule, not the product itself is defended, but a general principle of the service functioning that reflects some novelty of an approach to solve a particular problem.

When the mobile application is defended by the invention, the requirement of complying with the patentability criteria “novelty,” “inventive step” and “industrial applicability” is applied to it. If at least one criterion is not complied, the applicant will fail to obtain a patent for the application.

The validity period of the patent for the invention is established by Article 1363 of the Civil Code of the Russian Federation and is 20 years. It is not possible to renew the patent for the mobile application, because the legislator allows renewing only the patents for drugs or particular chemicals.

The interface design is an artistic and design solution that carries unique functionality and determines an appearance of the application. It can only be patented as an industrial design. Unlike the invention, the patent legislation of the Russian Federation establishes other criteria of patentability regarding it: the design must possess the world novelty and originality, i.e. the more differences from the nearest analog, the better. The patent validity is limited to 5 years, but the applicant is entitled to renew it repeatedly, but not more than till the period of 25 years. After the expiration of this period, the patent transfers into the public domain, and any person may use it without any consequences for himself.

Below, there are some examples of the solutions that are directly related to the mobile application that may be patented.

A mobile application concept implemented in the interactions with a user, the methods for representing the information, the organization of the social services or in a new messenger may be patentable. Systems or methods are usually patented as the concepts and a technical result is used – “expanding an arsenal of the means,” which is sometimes an official version for such useful effects as an increase in user convenience or an increase in the  in formativeness, which are usually not recognized to be technical by Rospatent.

Data processing may be defended by the patent. Thus, the solution can be connected with the modification of the already well-known solutions.  The key subject matter of patenting for this type of solutions is a method, i.e. the sequence of actions, which is performed by a software product by sending, processing and generating the data with the use of a server, a microcontroller and other devices. To avoid Rospatent's recognizing such method as an “economic activity,” it is necessary to describe the means on the basis of which the method is built up, i.e. which devices the application interacts with.

The key element of any mobile application is the security of the user data. The patentable solutions here may be the techniques to defend the transmitted or stored information, which is used, when working with the application. In addition to the method, the subject matter of patenting in this case may be the system as well, and the technical result will consist in improving the data security.

It is possible to patent an interface by describing its principles of interacting with the user. From the point of view of patenting, the interface is most often a method, i.e. the application describes what buttons and icons the user sees, how they are located, what the user does with them and what result is obtained.

The exact appearance of the application, unlike the interface, is the easiest one to be patented. An application for a patent should contain the illustrations that will show the basic concept of the appearance of the application by indicating to the main design elements, their location on a screen, a colour, if it is of importance.

Thus, despite the fact that at first glance the software product is a subject matter of the copyright, it is protected, as a rule, by a certificate for the registration of a program for an electronic computing machine, in fact, there are many other multilateral approaches to defend the mobile applications.

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