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Growing Legal Concerns in Mobile Application ('APP') Technology By Elain Berlin & Matthew Pinchney

(From the February 2012 Newsletter)


By:  Elaine Berlin and Matthew Pinckney
Hoffman Warnick LLC

This past year saw an increase in litigation surrounding mobile technology, in particular, smart phones and tablet devices.  Modern-age household names like Apple, Google and Samsung, have thrown their respective hats into the ring. 

Even further, patent holding companies (sometimes referred to as “patent trolls”) like Lodsys have initiated lawsuits against a number of mobile application developers, which originally included several small software developers. The Lodsys suits accuse the developers of infringing two patents directed towards an “in-app” payment technology. 

The increase in litigation surrounding mobile phone technology only helps reiterate the value of a sound intellectual property strategy when developing and commercializing mobile applications (“Mobile Apps”) and related businesses.  For example, in developing and commercializing Mobile Apps, developers should be cognizant of their rights and the rights of others to trademarks, copyrights, and patents.  Application names or tag phrases associated with a Mobile App such as “Angry Birds” can be protected using trademark filings, while the underlying source code and related images for the app can be protected via copyright registration.  Even further, where the mobile app implements a novel and non-obvious process, the developer could potentially obtain patent protection over that process. 

Each of theses areas of protection, however, can have associated pitfalls.  For example, developing a name or tag phrase that is for some reason unprotectable as a trademark could open the door for copycats and misuse of marks by others.

While copyright registration for source code and images can be a cost-effective solution for establishing initial protection of a Mobile App, a developer should be careful about using “open-source” software code when developing their application.  Open-source code is publicly available code that is developed and shared amongst software developers without ownership rights.  Because this code is essentially free for public use, it cannot be registered as a copyright.  Therefore, building a Mobile App on the foundation of open source code can result in the developer having limited copyright protection in the future.

Patent protection is another potential avenue which developers can pursue, however, there are associated costs and risks with such a strategy as well.  The timeframe for obtaining a patent on a Mobile App or its related software capabilities often exceeds 2-3 years.  With the fast-paced advancement in mobile phone technology and the ever evolving tastes of Mobile App consumers, the Mobile App in question could be out of style before a patent is ever obtained.

Despite all of these concerns, the advancement of mobile phone technology presents great opportunity for developers, investors and consumers.  Developers who keep intellectual property legal issues in mind when developing and commercializing their Mobile Apps will hopefully create a more robust product, providing well deserved protection and returns on investment.      

About the Authors: Elaine Berlin and Matthew Pinckney are Patent Attorneys with Hoffman Warnick LLC and members of the firm’s Mobile App Law Group.  518-449-0044 www.hoffmanwarnick.com


November 2014 NEWSLETTER

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