Article Source: http://techcorplegal.com/Blog_Technology_Law_Business_Research/2012/09/08/app-law-mobile-software-applications-patents-legal-issues/
If we look back and analyse the recent developments in the field of mobile devices, we would observe that the rate of iOS and Android device adoption has surpassed that of any consumer technology in history. If this rate is compared to recent technologies, it is interestingly observed that smart device adoption is being adopted 10 times faster than that of the 80s PC revolution. In a span of almost five years, expansion of this new technology is rapidly expanding beyond early adopter markets such as such as North America and Western Europe. Based on current figures, it is estimated that there were over approximately 640 million iOS and Android devices in use during the month of July 2012.
As a result of such massive growth in this sector, a new term, ?App Law? is regularly discussed these days, which is basically a new development taking place in other areas of law. It includes four main sectors, which are?PATENTS,?COPYRIGHT,?TRADEMARK?and?PRIVACY. Generally, the following list focuses on common issues that should be considered while developing the app business:
- Problems can be faced if too much is borrowed from someone?s work. Ideas are not protected only their expressions are protected.
- The inventor should legally own all the aspects of the app including the story, images and sound. If the work is copied, the inventor is put on a direct path with a lawsuit. Licensing is often more complicated and expensive than original work.
- The app must be registered with the Copyright Office to have federal protection right in order to sue others from someone infringing the app. Registering also provides notices for those searching the copyright database.
- A?competent attorney?should be consulted for liabilities and tax influence the type of business formed. Failure to do so may expose you to additional liability.
- Information should be collected, processed and developed in a proper manner.
- A marketing plan should be developed at an early stage to avoid wastage of time.
Mobile Applications: Patents
Software and Mobile Apps, including those sold in Apple?s App Store for the iPhone and the Android Market for Android phones, are an increasingly profitable market with huge commercial benefits. Mobile apps are similar to other software and business methods when it comes to patent eligibility and patentability, which effectively implies that apps are patentable.
For example, Google has been recently awarded a patent, called "Login to a computing device based on facial recognition," that describes a technology for identifying a person?s face and delivering to that person full access to personal information on a device. In use, Google?s patent requires a camera that can identify a person?s face. If that face matches a "predetermined identity," then the person is logged into the respective device. If multiple people want to access a computer, the next person would get in front of the camera, and the device?s software would automatically transition to the new user?s profile.
To satisfy the patentability and patent eligibility in US, an invention must meet the requirements of 35 U.S.C. ?? 101, 102, 103 and 112 of the US Patents Act, which may be summarized as follows:
35 U.S.C. ? 101 ? Inventions Patentable ? Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
35 U.S.C. ? 102 ? Conditions for patentability; novelty and loss of right to patent ? 35 USC ? 102(a):? A person shall be entitled to a patent unless the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent. 35 USC ? 102(b) ? A person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.
35 U.S.C. ? 112 ? Specification ? 35 USC ? 112(a):? The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Mobile Applications: Legal Issues
For even small and start-up technology companies, one of the largest and quickest revenue generators is the MOBILE APPLICATION DEVELOPMENT. However, the more important and serious issues for mobile application development companies are legal protection and agreement for their applications. The laws governing the mobile applications widely depend on nature of subject, nature of consumer and the business model used for developing the application, it is necessary to consider the following points:
Intellectual Property Right (IPRs) in Application Software
A copyright is given to the intellectual property right in the application software which is enjoyed by the authors from the moment the code is written by them. If the application development code is outsourced to a vendor, which is either achieved through a joint venture or taken from open source software, in any case the ownership to the copyright may be complicated.? When a part or complete application development has been outsourced, the vendor agreement should safeguard the financing party that all the IPRs have been acquired through a properly legal drafted ?work for hire? clause. Moreover, while the application is being developed it is very important that the vendor should be bound with a non disclosure agreement so that confidentiality is ensured.
When an application is developed and owned by a partnership, the IPR only over the subject is owned by each company. If any party of the partnership wants to further exploit the application for commercial or non-commercial purposes, then the partnership agreement should be executed. Each party will be required to account the financial benefits derived from the usage of the application to the other party.
Open Source Software
Open source software is used in 88% of Android phones and 41% of the IOS phones. OSS licenses have special requirement for attribution, distribution and non-discrimination with respect to the platform. Further, a single application may use a combination of OSSs, each governed by a different license.
Intellectually Property Right in Content
Copyright content such as images, videos and sound recordings might be used in the development of the application. ?Right Clearance? is required by the developers from the copyright owners in order to be protected against infringement claims. It is important to receive permission for use where such rights have not been licensed.
If the application or its features are similar to a prior registered or recognized trademark, Trademark issues might also arise. The actual test of the infringement is recognizing the use of another?s trademark which is not confusing the user regarding the origin of the application. This could lead to the infringement in a number of different ways which include:
- Name of the application.
- Layout of the application.
- Existing trademark used in the marketing of the application.
In order to avoid the infringement issues, the developer should identify the use of prior trademarks and inform the user that the application is not endorsed by the trademark owner. If the requirements of the safe harbor clause are followed by the developer, Digital Millennium Copyright Act might help avoiding the liability. The requirements include:
- When a complaint is received remove the infringing material.
- Disable the repeat infringers from using the application.
- No direct financial benefit from the infringing activity.
- Adopt technical measures to avoid infringement.
Privacy and Data Collection Issues
Recent studies show that privacy and data storage have become real concerns for the users. Failure to address the end user?s privacy may result in a negative way to the application?s consumer support and sale.
Privacy and data protection can be addressed by making effective terms of use and privacy policy statements that are reflective of the developer?s consumer base practices. The privacy statements must include:
- Information collected
- Way of storing
- Usage by the developer
- Privacy on the information
- Providing information
- Contact information for user complaints
Specific laws govern the use of information if the target is towards the application that collects financial, personal or health data.
Jurisdiction
The application developer needs to consult the laws in the country where the application would be distributed. Laws like consumer protection, privacy and data protection are different in U.S. as compared to Europe, China and India. If the App is being distributed in country apart from U.S., it is highly advisable to consult with?an attorney or other expert in mobile and consumer laws?of those countries.
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