One of the most common questions we’re asked by clients when they first approach Pocket App about developing their app is how they protect their concept from being stolen.
This is a completely understandable concern – if you’ve come up with an idea for a brilliant new app, you don’t want your developer taking it and repurposing it for another client.
It’s something that has to be tackled right at the beginning of the process, even before you start the pre-design stage (as discussed in our recent blog). Fortunately, if you’re working with a reputable developer, the solution should be very simple.
We recommend to all clients that they get an NDA (Non-Disclosure Agreement) in place before you share your idea with anybody at all. Also, as part of your contracting process with the developer, you should ensure that you own the rights and IP to the product being developed. These should both be standard practice.
Your developer can likely provide you with an NDA that will protect any information being shared – you can find Pocket App’s own form here.
You can’t own everything
Note that you won’t be able to own the IP for every single part of your app. Some elements will be built using what we call platform code. These are general-purpose building blocks that are used across projects to speed up the development process.
For example, if we integrate a Facebook login, that will use platform code. You will have a licence to use and sell that code, just not an exclusive licence. Otherwise, if we built one app with a Facebook login, we wouldn’t ever be able to do another.
Apps will also use some degree of open-source code. At the bare minimum, this will include code from Apple or Google to allow the app to run in their ecosystems, but might also include third-party code to integrate, for example, photo processing functionality.
These should be covered by a licence that lets you use but not own the code. The key is making sure your developer isn’t putting any third-party code in your app that isn’t properly licensed. It might be open source, or require a one-off or continual licence payment, but either way it should be licensed to you directly.
Expect your developer to provide you with a thorough list of everything that’s being utilised, and how it’s licensed.
Esther Gunaratnam, an IP Partner at Laytons, says “the boundary between bespoke new codes written for an App and new codes that are just an extension of platform codes can often be blurred. This is an area that parties often debate about as it can affect the ownership and rights to use the same code by either parties for future developments. Use of open source software can also cause issues down the line particularly if the App can drive the valuation of the company. An early understanding of these issues coupled with careful drafting of the development agreement should help to minimise problems later on.”
Protecting an idea
The most important thing to protect, especially at the outset, isn’t the specific code behind your app so much as the core concept. Not all ideas can be legally protected but having a tight NDA could help.
The branding of the App may be protected by trade marks. According to Robert MacGinn, a trade mark attorney and partner at Laytons, there are special rules for trade mark registrations so early advice about the choice of names is vital, especially before investing time and effort in a brand name that may be unavailable. “An appealing name can become a hugely valuable asset, so it is important to secure the legal rights as early as possible.”
New concepts may also be protected by patents.
For an example of what kind of app idea can be protected in this way, look at Amazon’s 1-Click, which was first patented in 1999. It’s not the code that’s being protected here – that will have changed significantly in nearly two decades – but the concept of a one-click purchase process.
Vitally, this needs to be a new concept, as 1-Click was at the time. You obviously can’t patent an idea that someone else has already implemented.
Trade marking and patenting are unlikely to be offered by your developer. We advise you to seek early independent legal advice on these matters. Esther Gunaratnam added that “the timing of the registrations can be crucial and the right to register patents may be lost if the patent application is filed too late.”
If you want to find out more about this topic, Laytons and Pocket App are partnering for a breakfast event exploring the intricacies of the app world, including IP, legal protection and data protection.
