At my agency, I've built apps for first-time entrepreneurs, early stage startups, Fortune 100 companies, and everything in between. And there's one piece of advice I give to clients, usually in the first meeting, that they always protest:

Patents for mobile apps are almost always worthless. They're a waste of money, a massive timesuck, and make it harder to build a good product. Yet I have this battle with my clients time and time again.

Now I want to put it to rest.

Instagram and Snapchat: A Tale of Two Stories

First, let's travel back to the ancient times of 2016, when Instagram first launched its Stories feature. This is old hat now, at the time, the feature generated a buzz online. Why?

Instagram Stories were a carbon copy of Snapchat Stories, sending tech bloggers across the Internet into a conniption. But it prompted no legal action from Snap, Inc.

Because, lo and behold, the Snapchat Stories weren't eligible for a patent and couldn't be protected by copyright. Legally, Snapchat had no recourse -- Instagram's CEO even publicly credited Snap for the innovation. All while gleefully stealing users with the copycat feature.

This is a perfect example of why it's so hard to patent an app. From a legal standpoint, an invention needs two main things to be eligible for a utility patent: it must be a) novel and b) non-obvious.

Snapchat Stories were, literally, a collection of photos arranged to tell a story. Scrapbooks have done this for a long time; there's nothing novel or non-obvious about it.

Copyright offers even less protection. Copyrights for software work the same way as literary works. They protect the arrangement of letters in the code, not the end result on a screen -- just like a literary copyright protects the text of a book and not necessarily the story arc.

So long as Instagram's code is sufficiently different from Snapchat's, there's no copyright infringement. That's pretty easy to protect against.

It's an Open Source World

But there's a bigger problem here. In the modern market, new apps don't just poach a feature or two from their competitors.

They poach everything.

Ninety percent of the code in new apps today is open source. There are vast online repositories of pre-written, copy-and-paste code for any feature imaginable. Whether you're looking for a shopping cart, a follow button, or anything else, you can grab the code from an open source library and drop it straight into your app. New apps may look new, but under the hood, they're basically a collection of pre-made features strung together with some unique code to create a full program.

This means that functionally, patenting an app is near impossible. Even if you wrote the code yourself, it still exists in an open source library somewhere. Legally, almost nothing in a new mobile app is eligible for a patent.

Patents Are Anti-Agile

But the biggest issue with patents? Getting one is bad business strategy.

Patent applications are long and costly. It can take months for the USPTO to process your application, and between filing and attorney fees, you can expect to pay anywhere from $5,000 to $20,000 for a new patent.

This means that especially for an early stage startup, patenting makes no sense. That money and time should be spent building an MVP and testing it to see if your app is worth building in the first place.

The fact is that when you first start out, even if you have a good idea, it's a glorified guess. Your job is to test your idea against the market to find out if you should keep going or pivot. Chances are, you'll pivot -- and then your $20,000 patent is useless.

Don't Patent Your App

After 10 years in digital development, I've overseen the launch of more than 500 digital products. A patent has been helpful in exactly zero of those launches.

Don't get me wrong: in certain cases, a utility patent can still be a good idea. If you've really come up with a new way to do things or a new device, it may make sense to patent it.

But for the vast majority of founders, patenting a mobile app is expensive, time consuming, and almost impossible. It goes directly against Agile development principles and ends up being a roadblock to finding product-market fit. My recommendation? Steer clear of the Patent Office.

Because at the end of the day, the best way to protect your idea isn't a patent. It's building a good prototype, getting it in front of users, and pivoting until you see traction.

That's advice you can't patent -- but I promise you, it's worth its weight in gold.

Published on: Oct 12, 2018