Can an app, i.e. application software for smartphones and tablets, be protected against imitators; and if so, how? About the legal claims and possibilities for protecting apps in Germany.
The software of an app is protected by copyright
An app, like all other computer programs, is the result of a creative effort: the program code of an app (as well as the command structure used) is considered a linguistic work and is therefore protected by copyright.
In Germany, copyright protection arises automatically with the creation of the app. However, only a 1:1 copy of the code is protected and not the functionality or concept of the software. In order to be able to clearly identify oneself as the author of the source code, the app developer should make sure to include one’s name in the coding. There are no costs associated with the copyright.
The software must solve a concrete technical problem
In most cases it is not possible to apply for a patent or utility model for a specific application program as a whole, because according to German and European patent law software “per se” is not patentable.
An app that is to be patented must — this is the necessary requirement — provide a special technical performance. It is not sufficient that data are processed and displayed on the mobile device. Patent protection can only be obtained if the app can capture, process and evaluate data and if this serves a technical purpose, i.e. if the software solves a concrete technical problem.
In reality, this is true in some cases. But before filing a patent or utility model application a careful consideration is necessary in order to have a realistic assessment as to whether there is a real chance of obtaining legally effective protection.
Protection of particular app components
By obtaining trademark or design rights, important app components can be protected in Germany, Europe or worldwide. For example, a trademark can be used to protect the name of the app, a slogan, a logo or a graphic, provided that the requirements of a trademark are fulfilled: The sign must have a distinctive character and may not be descriptive for the product. The registration must be made at the German Patent and Trademark Office (GPTO) and costs from 290 EUR; depending on the term of protection and the number of protection classes.
With design protection, the design and visual appearance of the app can be protected. In individual cases the procedure of these options presented here should always be discussed with an expert, and the cost-benefit should be compared.
Remarks
This article is also available in Chinese.
Legal notice
The texts published here do not replace legal advice from patent attorneys and attorneys-at-law. The articles only provide an introduction to the subject areas of intellectual property law. Qualified advice from a patent attorney can only be given with knowledge of the individual case. Should you wish to receive more detailed advice from our patent attorneys, we would be pleased to hear from you.
Authors
Matthias Rößler, LL.M. is a German and European Patent Attorney and co-founding partner of karo IP Patentanwälte Kahlhöfer Rößler Kreuels PartG mbB. He supports leading companies especially in the fields of automotive engineering, mechanical engineering, building technology and electrical engineering. Matthias Rößler has extensive experience in the field of national and international patent prosecution procedures and patent infringement matters. In addition, he deals with matters of trademark law and the valuation of property right portfolios, in particular in the context of a company acquisitions. You can contact him via E-Mail (roessler@karo-ip.de) and LinkedIn.
Justus Kreuels is a German and European Patent Attorney and co-founding partner of karo IP Patentanwälte Kahlhöfer Rößler Kreuels PartG mbB. His practice involves patent prosecution in the fields of mechanical engineering, automotive engineering, information technology and medical engineering and patent opposition as well as invalidity proceedings before the European Patent Office, the German Patent and Trademark Office, and the Federal Patent Court. You can contact him via E-Mail (kreuels@karo-ip.de) and LinkedIn.
