Software: Picking Your Protection

In the United States (and, for that matter, in most of the industrialized world), the three most common intellectual property right (IPR) protections available for software are patent, copyright, and trade secret.  Leaders of software development organizations must decide which protection (or protections) best supports the company’s business objectives, keeping in mind that different protections may be appropriate in each country in which the company plans to do business.

Patent

The primary benefit of protecting computer software with a patent is the strength of protection provided by national patent laws.  In most countries, a patentee may prevent others from making, using, or selling the patented invention.  As applied to software, an issued patent may prevent others from using a certain algorithm without permission, or from creating software programs that perform a function in a certain way.  A common disadvantage of patent law is the complexity of patent prosecution.  A patent application must comply with both the formal and substantive requirements of the nation with authority to grant that patent.  Also, the applicant must surrender confidential information related to the innovation, because a patented invention must be disclosed to the public in the targeted country.  When an inventor seeks protection for the same innovation in several countries, a patent must be applied for, in principle, in each of those countries.

Copyright

Copyright protects the literal expression of computer programs, whether in the form of source code or object code.  Copyright law prohibits the total duplication of a software program, and also the copying of a portion of software code.  Copyright may provide some protection against non-literal infringement, such as the creation of “cloned” software.  However, copyright law will not prevent the creation of a competing software program that employs the same ideas as an existing program.  A major advantage of copyright protection is its simplicity.  International copyright protection is typically automatic in the majority of industrialized nations, meaning protection does not depend on formalities such as registration or the deposit of copies in the jurisdiction.

Trade Secret

Trade secret law is often relevant to protecting software as intellectual property.  Most proprietary software owners take affirmative steps to protect software source code as confidential information, whether or not that software is also protected by patent or copyright.  Although access to machine-readable object code typically does not compromise the trade secret status of the underlying source code, other software product artifacts such as computer service and maintenance manuals, which may be of assistance in the reverse engineering of software, may also be protected as trade secrets.

As networked communications technology spreads into every corner of the globe, software and other digital content is ripe for instantaneous distribution to unauthorized recipients.  Consequently, the content owner must not only understand what rights can be protected, but also which protections are worth pursuing … and where.

Search Widerman Malek

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