Protecting an iPhone, Android or other smartphone software application can take five (5) forms:
- Trade secret – in the software code you write and compile. The only drawback here is that software development are so powerful and fast it is relatively easy to reproduce an innovative software application quickly.
- Trademark – in the brand you call the app (e.g., ANGRY BIRDS). Registering a federal trademark essentially takes that term (or terms) out of the public domain with respect to a software application. If you are thinking of filing a trademark on your own keep in mind that the trademark process is configured in a way that trademark examining attorneys are constrained in what they examine and you may obtain a completely unenforceable trademark registration. Seek an attorney for this if you brand has any value (or potential value).
- Copyright – you automatically have some copyright protection by virtue of saving your source code but an additional step is depositing it with the U.S. Copyright Office’s electronic submission system. By making the deposit within 3 months of publication or before actual infringement you may be able to recover your court costs, attorney fees and obtain up to $150,000 per copyright violation in statutory damages.
- Design Patent – if your GUI has a novel ornamental or aesthetic design (examples: patient charting on iPad, GUI for therapy). Design patents last 15 years (as of Dec. 2013) and there are no ongoing maintenance fees.
- Utility Patent – if your software application performs a novel, non-obvious and useful task. This is very tough to get for most software…..your app would need some form of artificial intelligence or other highly advanced function. Good, litigation-grade utility patents for software run between $14,000 and $25,000 to obtain.
Should you hire an attorney? Definitely for the patents and almost certainly for the trademark. The copyright deposit, if carefully done, can generally be performed competently by a non-attorney.