Episode 9 - The Fascinating World of Intellectual Property Law and How it Applies to Software

• Intellectual Property Law was created to foster innovation and competition.
• The concept has actually been around for centuries.
• Today, IP Law provides a way to protect coding innovations that may be novel or unique.

• It refers to ownership of intangible things, giving people and businesses property rights to the intellectual goods and innovation they create, usually for a limited time.

• You can own a specific brand logo, a unique way of solving a software problem or even a composition.

• There are four types of intellectual property:

  • Copyrights - for anything dubbed as “art” like paintings, music, etc.
  • Patents - for inventions, meant to purposely enable a monopoly on their production.
  • Trademarks - these are brand-related like logos, catchphrases and others that help identify a company.
  • Trade Secrets - concepts that give a business some competitive edge over another.

Patenting Code

• Software patents can be tricky compared to physical inventions. You generally can’t obtain a patent on the specific code you’ve written to solve a problem.
• It’s hard to argue uniqueness and novelty with software.
• You are still able to patent the solution to the problem that you’re implementing in code, or the system / method you’re using to solve it.
• Discoverability is also a big issue with software.
• Patent Applications take years to process.
• You have to disclose how you solved the problem.

Copyrighting Code

• Coding itself is considered a creative endeavor. Therefore, it’s art just as much as a poem or a book is.
• Copyright doesn’t protect the ideas behind the code.
• Original software is automatically copyrighted under international law.
• You must register the work in order to sue under US law. But that implies you have to publish some portion of the source or object code.
• However, this is an issue because it makes other people or competitors aware of your software and the problem it’s solving. Plus there’s security implications with publicizing your code.
• But you can use copyright to protect the literal copy of your software. This can also include audiovisual work used in your program.
• The law allows a “fair use” claim - as defined by the courts - for those that are copying your code. For example you can modify copyrighted software for personal use or use it for educational purposes.

Code as a Trade Secret

• Treating software as a trade secret does not require you to submit a prior application or upfront filing.
• Court cases seem to show that an entire software package is hard to protect. But the source code itself is most likely to be treated as a trade secret.
• However, the more visible to a user that part of your software is, the less protection it receives.
• Open source software does not qualify for this protection.
• Filing code as a trade secret gives you legal grounds in case someone steals the code for their own benefit, even if they slightly modify it.

Other References

• Google Patent Search
• Software copyright
• Software Patent or Copyright: Everything You Need to Know
• How Can You Protect Your Software As A Trade Secret?