Software developers and distributors need to be aware of several important forms of protection available for proprietary products.
Since software products generally are among your most valuable assets, be sure to take the steps necessary to adequately protect your rights.
In the United States, almost every form of computer software can be protected under existing intellectual property laws and through contracts. If possible, seek protection for software products through more than one mechanism, giving careful thought to which forms are best for your company. These should be adopted and implemented before you distribute your proprietary products.
Trade secret law, often the easiest mechanism to use to preserve proprietary rights, also may provide the broadest form of protection.
Unfortunately, trade secrets may be the most difficult form of protection to enforce. All forms of software, including algorithms, may be protected by trade secret law if the following conditions exist: steps are taken to preserve the confidentiality of the software as a trade secret, the technology is not generally known in the trade and such technology gives you, the owner, a competitive advantage.
Trade secret law will protect your proprietary rights only for as long as the secret is preserved and continues to provide you with a competitive advantage.
Patent protection, on the other hand, may be the most difficult form of protection to obtain.
Generally, patent applications for software are complicated and lengthy. Once issued, however, a United States patent will provide protection for the idea as stated in the claims, which may go beyond the actual software program.
To obtain a patent for your software invention, you must meet the tests of utility, novelty and non obviousness. Claims which merely recite a mathematical algorithm are not patentable.
The claims must recite elements of an apparatus or steps of a process. A patent will give you a period of 20 years of protection from the filing date of the application.
Copyrights also provide a level of protection for software. A software program is copyrightable if it is an original work of authorship fixed in a tangible media.
Copyright law does not protect processes, only how the steps in the process are expressed. As a result, copyright protection is more limited than patent protection. Federal copyright registration may, however, give you invaluable protection.
Willful infringers are subject to large penalties. Unlike a patent application, an application for copyright registration is neither complicated nor lengthy. Copyright registration applications involve relatively simple paperwork and a mandatory deposit of the material sought to be protected. Copyright registration provides protection for up to 100 years.
Trademarks are important to identify the source of origin of a product and often are strong indicators of ownership. A good business policy is to seek a unique identifier for products that you distribute. Take care to choose a mark that does not infringe the proprietary rights of another.
Licensing and distribution agreements increasingly have become methods of choice to protect and preserve proprietary rights.
They may be your most important form of protection. Licenses should appropriately limit the scope of use of your software and restrict activities such as reverse engineering.
Some agreements include provisions that restrict distribution of software only to those countries that have strong and enforceable intellectual property laws.