How to protect an app idea in Australia: NDAs, patents, copyright and trade marks

Can you protect an app idea at all?

Not the idea itself. Australian law protects particular things you create or register, not the concept behind them. The Attorney-General’s Department puts it directly: copyright doesn’t protect ideas or information, only the original expression of ideas or information, and it doesn’t stop someone else independently producing the same work.

That sounds bleak, but it’s the same everywhere and it’s rarely what sinks a startup. What you can protect is everything around the idea: the confidential detail of how it works, the code and designs, any genuine technical invention, and the name. Each has its own tool.

What you want to protect	Tool	Registration?	Cost to obtain	What it doesn’t do
Confidential details before launch	NDA and confidentiality practices	No	Usually just the drafting	Doesn’t bind people who never signed
Code, designs, text, graphics	Copyright	No, automatic	None	Doesn’t protect the concept or features
A genuine technical invention	Patent	Yes, IP Australia	From $100 provisional to several thousand dollars, plus attorney fees	Doesn’t cover business schemes on a generic computer
App name and logo	Trade mark	Yes, IP Australia	From $250	Doesn’t protect the app’s function
Who owns all of the above	Contracts with IP assignment	No	Legal drafting	Can’t fix ownership retrospectively without consent

What does an NDA actually achieve?

An NDA makes the people you share with legally responsible for keeping your confidential information confidential and using it only for the agreed purpose. It’s useful, but narrower than many founders expect.

What a well drafted NDA does:

• Defines what counts as confidential information.
• Limits how the recipient can use it, usually to evaluating or delivering the work.
• Requires them to keep it secret, often for a set period.
• Gives you a contractual claim if they breach it.

What it doesn’t do:

• Protect information that is already public, or that the other party already knew or develops independently.
• Bind anyone who didn’t sign, such as people who see your app once it launches.
• Stop a competitor with the same idea.
• Enforce itself. If someone breaches it, you still have to act, which can be costly.

An NDA also protects patent options. IP Australia’s advice for anyone who might patent is to make sure everyone involved in developing the invention understands it’s confidential and has signed a non-disclosure agreement, and when discussing your business to talk about the problem the invention solves rather than your solution.

AWLabs sends a mutual NDA before detailed conversations. It covers app concepts, designs, prototypes, source code, business models and ideas discussed in consultation, runs for three years, and is signed on our side before you share anything.

Can you patent software or an app in Australia?

Sometimes, but most apps don’t qualify, and the rules for software have only recently settled. IP Australia says software and computerised methods aren’t specifically excluded from patents, but are only patentable if the true character of the invention is more than a standard computer performing an otherwise unpatentable business method, scheme, game, plan or idea.

On apps specifically, IP Australia’s guidance says most of the time an app simply performs known functions, and even a new way of doing business through an app generally won’t be patentable unless the invention addresses a technical problem or changes how a general purpose phone, tablet or computer operates. Its own example: a messaging app with a new encryption algorithm that improves security can be patented; a messaging app with a new layout and colour scheme can’t.

Likely patentable	Likely not patentable
A new technique that makes data processing faster or storage more efficient	A new business model delivered through an app
Software that changes how an external device or system physically works	A booking, marketplace or delivery app using standard technology
A new security or encryption method	A better looking interface or a new layout
Components interacting in a new technical way to produce a result	An optimised route or schedule described without technical detail of how

How the Aristocrat litigation changed things

The law on computer implemented inventions was uncertain for several years. In Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29, the High Court split three to three on whether Aristocrat’s gaming machine invention was patentable, so the earlier Full Federal Court decision against Aristocrat stood. After further proceedings, the Full Federal Court found for Aristocrat in [2025] FCAFC 131. IP Australia updated its examination guidelines on 14 October 2025 to reflect that decision while seeking special leave to appeal, and the High Court refused special leave on 5 February 2026.

The practical upshot, in IP Australia’s current guidance, is that a technical innovation can arise inside or outside the computer, and an invention that improves an external system doesn’t also need to improve how the computer itself works. The core test hasn’t disappeared: a business scheme run on a generic computer is still not patentable. If you think you have a real technical invention, talk to a registered patent attorney.

Timing matters more than anything

IP Australia warns that if you make your invention public before applying, it may not be eligible. There is a 12 month grace period for public disclosures, but it’s safer not to rely on it. A provisional application costs from $100, gives no protection on its own, but sets a priority date and gives you 12 months to file a full application. Patents last up to 20 years if renewal fees are paid, and protect you only in Australia unless you apply overseas.

Who owns the code, and how does IP assignment work?

Copyright in the code exists automatically, but it belongs to whoever wrote it unless an employment relationship or a contract says otherwise. This is the protection founders most often get wrong.

IP Australia sets out the default positions:

• Employees. Employers own the IP their employees create in relation to the business, unless the employment contract says otherwise.
• Contractors and freelancers. IP created by a contractor is the property of the contractor unless otherwise stated in the contract.
• Cofounders. If two or more people create something together, they can be joint owners.

So if a freelancer builds your app and the contract doesn’t assign the IP, you may have paid for code you don’t own. IP Australia recommends a written contract before work starts that defines who owns the IP and who can use it commercially.

What to put in place:

1. A company to own the IP, rather than you personally, if you plan to raise money or sell.
2. A written IP assignment from every developer, designer and contractor, covering code, designs, documentation and anything created for the project.
3. An assignment from each cofounder for work done before the company existed.
4. Clarity on when ownership transfers. Many agencies, AWLabs included, assign IP as it is paid for, with final transfer on final payment.
5. Access to the source code and the accounts it runs on (cloud, app stores, domains) in the company’s name.

Our software development contract checklist covers assignment clauses, moral rights consents and source code access in more detail.

Should you trade mark your app’s name?

Yes, if the name matters to the business, and ideally before launch. IP Australia warns that registering a business name with ASIC doesn’t give you exclusive rights to it, and a domain name only secures the web address. A registered trade mark puts you in a much stronger position to stop others using the name.

IP Australia’s figures at the time of writing:

Item	Detail
Minimum cost	$250 for a standard application, with fees per class of goods and services
TM Headstart (pre-application assessment)	From $330 in total, including a $200 request fee per class and a $130 conversion fee per class
Time to register	At least 7 months
Duration	Up to 10 years before renewal

Fees depend on how many classes of goods and services you list, so choosing the right classes for software and online services is worth getting advice on. Before you commit to a name, search the trade mark register, the App Store and Google Play, and check the domain.

What should you do before your first developer conversation?

Prepare so you can share what’s needed without giving away what you don’t need to. A practical sequence:

1. Decide whether anything is patentable. If you think there’s a technical invention, talk to a patent attorney before any public demo, pitch event or post.
2. Set up the company that will own the IP, if you haven’t.
3. Search and secure the name. Check the trade mark register and app stores, register the domain, and consider filing a trade mark.
4. Write a brief that describes the problem first. Our guide on how to write a software brief shows how to explain what you need without leading with the secret.
5. Ask for an NDA before sharing confidential detail, and read what it covers.
6. Check the contract for IP assignment, source code access and what happens if you part ways.
7. Keep records of what you created and when, such as dated documents, designs and code commits.

Is speed a better protection than paperwork?

Often, yes. Copycats are less of a threat than founders fear, because execution is hard and most people with an idea never build it. A product with real users, a strong brand and data from those users is far harder to copy than a concept.

The legal tools still matter: they stop the people you work with from walking off with your work, and they make the company investable. But for most apps, the best protection is to get a focused first version in front of customers before anyone else does. Our startup MVP service is built around that, and how we work sets out our approach to confidentiality and ownership. If you’re deciding who should build it, see technical cofounder vs agency vs freelancer.