Protecting your code against illegal copying and copyright infringements should be on the top of your list of priorities. If your core business is software developmentor you happen to create software to meet your custom requirements, defending your software is as important as writing the source code itself. In this article, you will find software protection steps to go through.
Patenting Your Software
Most experts agree that patenting the ideas and concepts surrounding your source code is an ongoing process. Business practices, however, show that even popular services such as Facebook and Twitter failed to patent what really matters. You can follow the example of companies such as Motorola and BlackBerry who have patented not only their research but also components that matter to peers and competitors as well.
Patent as early as possible
The U.S. patent authorities may need up to five years to issue you a patent. On the other hand, you can file for a provisional patent with minimal details whenever you wish and provide the rest of patent details up to 12 months later. So, act fast and defend your software by patenting early. You will have plenty of time to provide viable proof of your patented work later. You should be aware that it takes some 40 months to get a patent in Europe, so the above advice applies to European patents as well.
Not all patents are equal
A patent issued by the U.S. Patent and Trademark Office provides little to no protection outside the United States. The average software developer should take into account all the different jurisdictions where the software source code should be protected. You can proceed on a case-per-case basis when geographic locations are concerned. Research carefully all local copyright legislation and practices.
Often your customers will want assurances that if something was to happen to you or your business they will be protected and be able to continue using the software you provide them. This normally entails your customers asking for access to your source code so that in worst case scenarios they could continue to maintain the critical application they depend on.
Giving your source code to your customers is obviously not a business savvy move and so software escrows were created to alleviate the problem.
A software escrow service stores the source code with a secure 3rd party escrow agent until a mutually agreed upon event such as bankruptcy occurs. This way you do not have to give access to your source code and your customer is still protected.
Trademarks, Copyrights, and Trade Secrets
Motorola cashed a good number of their patents while BlackBerry is still fighting legal battles to cash on their patented software and hardware solutions. In any event, you should be well acquainted with the basics of intellectual property (IP) legislation to go through the software protection steps in the best possible way.
For instance, you should distinguish between copyright protection that extends only to expressions, and not to ideas, as well as mathematical concepts while a patent is an exclusive right granted for an invention.
Invest in IP Research
Online tools are available to research patent and trademark info before you release your product on the market. Performing your own copyright research will save you both time and money. Furthermore, it will give you an overview of your own market as seen from a legal perspective – who owns what and when protected IP rights eventually expire.
Get a reliable legal advisor
You can perform legal research yourself but professional legal protection requires professional legal advisors. Directive 2009/24/EC on the legal protection of computer programs across the European Union is not a text you would like to read without a legal advisor on your side.
From a legal perspective, your software code is just a stack of text. So, patents and trademarks are what matter. Take your time and register any trademarks you deem necessary for the protection of your software code. The same applies to any copyrights you have not still protected.
You can file with a court to defend your intellectual property concerning software code. You have both the U.S. Copyright Office and the EU legislation on your side in case of copyright infringement. But you cannot prevent trade secrets from leaking unless you adopt comprehensive non-disclosure agreements contracted between you and your employees and partners. You should also adopt strict copyright policies regarding all of your licenses, sales contracts and technology transfer agreements.
Protect early, protect everything
You should be aware that source code protection is simply not enough to protect your software products. You need to think about the protection of your software as a combination of multiple components that include patents, trademarks, trade secrets and copyrights. Registering the right URLs early and protecting them in the right way is also part of a viable strategy to defend your IP rights.
Getting professional advice concerning any commercial software or application is required by any means. Nonetheless, you can secure basic source code protection by implementing the above steps largely yourselves.
One thing you should bear in mind is that most of the source code produced is hard to protect through patents. As we said, you cannot copyright ideas and that is why so many similar software apps by different providers exist in the first place. Facebook cannot have copyright over the very idea of a social network, they can patent only the specific components of their implementation. And it is how source code protection legislation works in any field of life.
Furthermore, copyright is largely automatically protected in all countries that have signed the Berne Convention, an international agreement that governs copyright. Protecting your source code by the means of patents requires passing through an approval procedure by a government agency all over the world.
To recall, software protection steps should include patents, trademarks, trade secrets and copyrights.
Jorge Sagastume is a Vice President at EscrowTech International, Inc. with 12 years of experience protecting IP and earning the trust of the greatest companies in the world. Jorge has been invited to speak on IP issues by foreign governments and international agencies. You can connect with Jorge on LinkedIn.
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