Short on time? Read Inngot’s guide on the key protections available in less than 10 minutes.

The main way that software code (compiled and the source code) is protected is via copyright. As with all copyright, it doesn’t protect the idea, just your specific implementation of it.

Check out our previous article on copyright here.

In the context of software, copyright gives you the right to stop someone directly copying your code. It doesn’t stop people writing their own original code that delivers the same or a similar effect. If you want to do that, then you need a patent (see below).

Be careful, though, because ownership of copyright can be complex. The default position is that the original creator owns the copyright, unless they are an employee and writing code is part of their job. in which case the employer owns the copyright, not the employee. 

This means that if you use freelance programmers, or if an employee creates code but it isn’t their job, then legally the copyright in the work will not be owned by the company. In these cases it is important to make sure there is a clause in employment contracts and consultancy/agency agreements that all copyright is transferred to you and that such transfers are documented.

You should assert your rights by including a copyright notice in the code itself, and by keeping an eye out for your code appearing in other people’s software.

In the UK and Europe, a computer program cannot be patented, unless it has a ‘technical effect’. As the UK IPO guidance explains: “Software to control a driverless car could have a patent, while a chess playing app could not.” How to decide whether software has a technical effect has kept UK and European patent lawyers and judges busy for the last few decades. Abstract ideas (which can include business methods) also can’t be patented.

In America, the rules are slightly different although they follow the same general principles. Prior to the America Invents Act (AIA) being passed in 2011, the rules, were relatively patent friendly resulting in more software-based patents being granted. This all changed with the passing of the AIA and the subsequent decision in the US Supreme Court decision in 2013, known as ‘Alice’.

In the Alice decision, the Supreme Court ruled that just saying in the patent application “uses a computer to perform X” did not qualify as an “inventive step”. Many previously granted US software patents have since been overturned.

Given this, it is not surprising that applying for a patent relating to an invention involving software adds levels of complexity, and any company considering going down this route will need to consult patent attorneys, preferably ones with specialist proven experience patenting software-related innovations.

Don’t forget, as part of any patent application, an applicant must include enough details of how the invention works, so that someone else who is ‘skilled in the art’ is able to reproduce it. If you apply and don’t get a patent, you have told your rivals how to do what you do! This is one of the drawbacks of applying for patent protection and why many algorithms etc. are often kept secret instead (see below).

The rewards if you do get a patent for your software-related innovation can be significant as you are able to prevent others from writing software which solves the same problem in the same way. Without patent protection you must rely on the fact that your competitors cannot work out what you do to keep your differentiation.

As an alternative to a patent, aspects of software can be controlled using trade secrecy laws, which protect unauthorised use of a company’s secrets, even if they should be stolen or leaked. 

If you do want to use trade secrecy protection, however, then you will need to have strict processes for managing your secrets. This can involve maintaining a register of the secrets, including who has access to the actual source code, or knows the details of the secret algorithms.

You should also ensure that anyone who knows secret information has signed a legal document covering how they will handle the information and how they will store it. This should extend to employees and business partners – for example, collaborators, suppliers and distributors. 

Managing and restricting access to your trade secrets is more than just good practice; it is also necessary from a legal perspective. If you want to enforce your trade secrecy rights in court and prevent others using your secrets (even if they know them), then you will need to show that you have taken precautions to keep them secret.

You also must show that the other party obtained the information under conditions that imparted on them an obligation of confidence (i.e., the secret was not blurted out or presented in a public forum) and they are using the secret information for a purpose which you have not authorised. 

Trade marks can be powerful in building a brand around software you have developed.

Just check out the lists of trade marks big software companies like Microsoft or Apple own; they run into the hundreds, if not thousands. They are core to their software branding strategies and the fight against counterfeit programs.

If you have created a program or app that is at the heart of your company’s products and services, give it a unique distinctive name and/or a logo, and register the name and/or logo as trade marks.

A trade mark can potentially last forever (if you keep paying the renewal fees, and if you use it for the specific goods and services listed in your trade mark registration). It’s important that you think carefully about what you may want to use the trade mark for.

You may, for example, plan to hand out promotional items at exhibitions – like hats, mouse-mats, and pens – so look for the relevant classes covering those as well as the ones that cover your main business area. Be as specific as you can in your application and include all the products and services you intend to use, as you can’t add new products and services at a later date.

If you successfully register a trade mark for your software, then you have the legal right to use the Ò symbol to warn off potential infringers. If a mark is not registered, however, then it is a criminal offence to use the Ò symbol as this is misrepresentation.

Even if you don’t get your mark registered, there is still some legal protection preventing others using your marks even if they are not registered (under legislation known as ‘passing off’ laws). You may want to label the unregistered marks (or registered ones) with ™ to show the world you are using the mark as a trade mark irrespective of whether it is registered or not.  

Registered Designs and Unregistered Design Rights can’t be used to protect the software itself. However, they can cover how a program or an app appears on screen including related icons and user interfaces.

A Registered Design is a monopoly right for the appearance of the whole or a part of something  – which means if you successfully register a design, you can stop other people using it. In the software industry it has been used to protect novel elements in a graphical user interface or, in gaming characters (such as Lara Croft).

In the UK, a design registration lasts for 25 years, as long as it renewed every five years. 

There are also two forms of Unregistered Designs. One lasts for 10 years but is only for 3D objects (i.e. physical products). The second only lasts for three years but can be applied to 2D and graphical elements and so can be relevant to software.

To obtain design protection (registered or unregistered) your design must be new (i.e. not common place in your industry) and it should have its own individual character. 

Compared to patents and even to trade marks, the registering of a design is inexpensive. In the UK, for example, registering a design costs from £50 for one design to a maximum of £150 for up to 50.

Outside the UK, you can apply for a Registered Community Design (RCD) which covers the whole of the European Union (EU); or you can use the Hague System to apply to several different countries or territories (such as the EU) at the same time via a single application.

To learn more about IP and understanding its value, visit Inngot.

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