Patenting for Inventors Ep.163: Can You Patent an App? What You Need to Know Before You File

In this episode of Patenting for Inventors, Adam Diament tackles one of the most common questions he hears from founders and inventors: can you patent an app? While many creators assume a clever app idea is automatically patentable, the reality is far more nuanced. Adam walks listeners through what the Patent Office actually looks for in software inventions, why ideas alone aren’t enough, and how technical implementation makes all the difference.

Drawing on real-world examples, this episode explains how app patents work, what qualifies as patent-eligible subject matter, and where many inventors go wrong when filing. Adam also covers provisional patent applications, design patents for user interfaces, trade secrets, and the critical timing rules that can make or break your rights. Whether you’re building a prototype, preparing to launch, or pitching investors, this episode offers practical guidance to help you protect your app before it’s too late.

Patenting for Inventors Ep. 163:

Podcast Transcript:

Hello, and welcome to the Patenting for Inventors podcast. I’m your host, Adam Diament, a registered patent attorney and partner at the law firm of Nolan Heimann in Los Angeles, California. This episode is Can You Patent an App? What You Need to Know Before You File.

So let’s start with this. Have you ever had an idea for an app and thought, “Oh man, this is genius. I should patent this before someone steals it”? Yeah? Well, if you’ve ever said that to yourself, or maybe shouted it to your dog while pacing around the living room, then this episode is for you 

Because here’s the thing. Patenting an app is not as straightforward as you might think. A lot of people assume that if they came up with a clever new app idea, it’s automatically something they can protect with a patent. But the world of software and patents is kind of like trying to read the terms and conditions on your phone. Technically possible, but slightly painful without help.

Now, can you patent an app? The short answer is yes, sometimes. The longer answer is it depends on what your app does and how it does it. Because an “idea” for an app by itself is not patentable. You need to have something more than just the concept. You need something that has structure, that’s specific, and that does something in a technical way, not just a business way.

Let’s say you come to me and say, “Adam, I’ve got an app that helps roommates split bills.” Cool. That’s a nice idea. But unless the way your app calculates or processes those bills involves some kind of new technical method, or it does something behind the scenes that no one else is doing, then it might be tough to get a patent. Why? Because the Patent Office doesn’t grant patents for abstract ideas. And “splitting a bill” is about as abstract as it gets.

The trick is in how you implement that idea. If your app uses some kind of novel algorithm that handles recurring payments in a totally new way, or maybe it’s optimized for ultra-low latency in split-second financial transactions, something like that, then now we’re talking. Now we’ve moved into technical territory, and the USPTO gets a little more interested.

Now you might be thinking, “Wait, but apps are software. Don’t people get software patents all the time?” And yeah, software patents are definitely a thing. But the bar has been raised in recent years. The Supreme Court issued this decision that basically said that you can’t patent something just because it’s done on a computer. So if your app just takes a known process and sticks it into a smartphone format, that’s usually not enough.

The Patent Office is looking for something they call “significantly more.” Like, sure, maybe your app does what other apps do, but if it solves a technical problem in a novel technical way, then it might qualify. Maybe it improves how devices operate. Maybe it handles data differently. Maybe it makes user authentication faster without compromising security. Stuff like that. That’s what pushes an app toward patentability.

Here’s an analogy. Imagine you’re trying to patent a new kind of cookie. You can’t just say, “I came up with a new cookie that brings people joy.” That’s lovely, but the Patent Office isn’t in the joy business. They want ingredients. Measurements. Bake times. What’s different? What’s inventive? It’s the same with apps. They want the code-level recipe, or at least a detailed enough explanation of what makes your app technically unique.

Now let’s talk about what not to do. One of the biggest mistakes I see is inventors who just submit a vague description. They say, “It’s a social media app that connects people based on their mood.” And I’m like, okay, cool, but how? Is it using sensors? Does it analyze facial expressions? Is it reading voice tone in audio clips? If all you’ve got is the idea of “connecting people by mood,” you’re not going to get very far at the Patent Office. You need more meat on the bones.

That’s why I always say, write down how your app works. Even if you don’t have all the code written yet, describe the functions. What are the steps? What inputs does it take? What outputs does it give? What’s going on behind the scenes? Pretend you’re walking someone through the app step by step. That’s what patent examiners want to see.

And let’s be real. Apps are often built in stages. So even if you’re still in prototype mode, it might be worth filing a provisional patent application. That way you can get your filing date locked in while you continue to develop. You don’t have to submit claims in a provisional, and you don’t need formal drawings, but you do need a detailed description.

Oh, and by the way, there’s another common misconception out there. People think they need to have an app fully built before they can file a patent. Not true. You can patent something that hasn’t been built yet, as long as you can describe it in enough technical detail so that someone skilled in the field could build it based on your description. That’s called “enablement.” So don’t wait too long thinking you have to finish coding before you protect your idea.

Now let’s say you do have a pretty good idea of how your app works, and you think there’s something novel going on under the hood. That’s great. The next thing to ask yourself is what kind of patent am I actually going for here? Because there’s more than one type. Most people assume it’s all about utility patents, which is usually the case, but sometimes there’s also a place for a design patent.

A design patent? For an app? Yep. If your app has a unique graphical user interface, maybe the layout, the animations, or the icons are really distinctive, you might be able to get a design patent just for the look and feel. It doesn’t protect the functionality, but it could be useful for apps that want to guard against copycats ripping off their screen design. Think of the original iPhone icons, or how Tinder’s swiping interface became iconic. There’s value in visuals.

But for most app creators, the real focus is on utility patents, which protect how something works, not just how it looks. And again, to get there, you’ve got to clearly explain the steps your app takes and how they’re different from what’s already out there. It’s not enough to say it’s “faster” or “better.” You need to show how. Think of it like trying to impress a really skepticalengineer who’s been burned before. The patent examiner wants substance.

Now I get a lot of people asking me, “What if I just keep it a trade secret instead?” And yeah, that’s a legitimate strategy for some things. But with an app, trade secrets get tricky. Why? Because the second you put that app on the App Store or Google Play, people can start dissecting it. They can reverse-engineer the front end, maybe even peek at what the app is doing in the background. It’s not like keeping grandma’s secret cookie recipe locked in a vault. If it’s out in the world, it’s hard to keep it a secret.

Plus, trade secrets don’t stop someone else from independently coming up with the same thing. If someone else builds a similar app without stealing yours, you can’t stop them. A patent, on the other hand, gives you that exclusive right. It doesn’t matter if someone “independently invented” the same thing after you filed. If you’ve got the patent, you win. End of story.

One thing I’ll caution, though, don’t go into this thinking your patent is going to be some magic lawsuit weapon. Most patents aren’t worth enforcing unless you’ve got the resources and the reason. But they can be incredibly valuable for licensing, for fundraising, for showing investors that you’ve protected your tech. Even if you never sue anyone, having that patent in your portfolio can be a game-changer in business discussions.

And timing is everything. There’s this thing called the “one-year rule” in the U.S. If you publicly disclose your app, like you show it at a conference or you post about it on your blog, you have one year from that date to file a patent application. After that, you’re out of luck. And in most countries outside the U.S., you don’t even get that one-year grace period. You have to file before any public disclosure. So if your idea is really that great, don’t wait too long.

Also, and this is just my friendly attorney soapbox moment, be careful who you talk to. If you’re out there pitching your app idea to people without a non-disclosure agreement, you might be risking your rights. I’m not saying you have to hide under a rock, but at least think about whether you should be filing a provisional patent application before you start shopping your idea around town.

So, to wrap it up, yes, you can patent an app. But you need to move beyond just “the idea” and really focus on the technical implementation. If your app solves a problem in a new technical way, or improves device functionality, or uses a novel method for processing or interacting with data, then you’re probably on the right track. But just having a clever app idea is not enough. It’s all about the execution.

And if you’re unsure whether your app qualifies, talk to a patent attorney. Seriously. Even if it’s not me. The process is complicated, and getting it right early on can save you a ton of headaches down the road. And if it is me? Well hey, bonus for both of us.

That’s it for today’s episode. I’m Adam Diament, and if you need help filing a patent application or other intellectual property, give me a call at 424-281-0162. Until next time, I’m Adam Diament, and keep on inventing!