Protection of the right to the uses of software one has developed is an incredibly complex and controversial area of intellectual property law, which will continue to evolve along with technology. It is, consequently, a highly specialized area of legal practice—one requiring not only legal knowledge and experience advanced technological expertise, but also the creativity to develop arguments and analysis of existing case and statutory law that will provide you, as a software developer, the maximum level of protection available.
Applications for Mobile Phones
One area that is growing exponentially is the development of software for I-Phones, Androids, and Windows phones. The number of apps out there is huge. As of June 2016, 2.2 million apps were available for Androids, 2 million for Apple products, and another half-million or so for Windows phones. New apps are being developed every day. Around the globe, some 30 million apps are downloaded daily. Some of these are quite valuable, and their developers have every reason to want to protect their ability to profit from their work, making it important for app developers to maintain a relationship with a good intellectual property law firm.
The internet is a great tool as well as a booming marketplace. It comes with dangers to individuals, businesses, and governments, as hackers seem to be able to penetrate the most sophisticated of systems. Protecting intellectual property and personal information on the internet poses many challenges. Cyber security is a growing area of concern, and a lucrative career choice for security-oriented software developers. If you have written quality original cybersecurity software, you have created a product of immense value to assist in the protection of the intellectual property of those whose work is accessible through the internet. You have also created a commodity for which you will need to seek intellectual property protection of your own.
Whether you are a designer of apps for mobile phones, innovative computer software, or a cybersecurity program that can be marketed to protect confidential information and intangible property of businesses, individuals, or government entities, your work is a valuable asset, the use of which you will want to safeguard and control. If you have developed one or more software programs to which you want to protect your rights, you will benefit from hiring a law firm, like the Dallas, Texas, firm of Yee & Associates, whose technologically savvy attorneys specialize exclusively in intellectual property law, are licensed and registered to practice before the United States Patent and Trademark Office (USPTO), and have substantial recent experience in this specific area of intellectual property law.
Choices in Intellectual Property Protection for Software Programs
Protection of intangible intellectual property rights with application to computer software comes in several forms: patents, copyrights, trademarks, and trade secrets, each providing a different type of protection. Whether one or another of these is an option available to you will depend on the specifics of the software you are trying to protect.
A patent allows the holder exclusive rights to the use and benefits of the patented property for a period of time, in exchange for public disclosure of the technology. Unlike a copyright, which will be discussed below, a patent can cover a new and innovative idea (as opposed to simply the creative expression of the idea). To be eligible for patent protection, any invention, idea, or process must be new, useful, and non-obvious. Patents have been obtained by software developers for ideas, systems, methods, program algorithms, and certain functions. However, recent Federal Circuit decisions have invalidated patents on software simply comprising a list of instructions to a computer as being too intangible to qualify for patent protection. If your software does qualify for a patent, it will give you the right to produce, use, or sell it and will protect you from infringement and independent development for the duration of the patent, usually 20 years.
Obtaining a patent for software is challenging. A common test often applied to determine eligibility for a patent is the “machine-or-transformation test” in which the software will be eligible for patent protection if it a.) is implemented by a particular machine in a non-conventional and non-trivial manner or b.) transforms an article from one state to another. This is not, according to a U.S. Supreme Court ruling, the exclusive test of eligibility. A creative and knowledgeable intellectual property attorney may be able to develop arguments for software that does not meet the conditions of the machine of transformation test.
Copyright is the most common form of intellectual property protection for computer software. Copyright does not protect an idea itself, but only the creative implementation of the idea. The code you write implementing the idea may not be copied. The creative work must be developed independently. Copyright does not affect any purely functional aspect of the program or any aspect restricted by external factors to an extent that does not allow for significant creativity.
Copyright does not grant the same degree of exclusivity as a patent, but it does have certain advantages. It is simpler and less expensive to obtain and is not limited to 20 years, as a patent is. It does give you the sole right to copy the software, modify it, and make it available to the public by giving, selling or licensing.
To be legally protected by copyright, the program must have been developed independently. That does not mean two programs cannot have similarities. Two programmers may write programs that perform similarly, but each has developed their code independently. Or they may implement a standard algorithm and end up writing similar code, but each program would be individually protected by copyright without infringing on the other, as long as it was independently developed and not copied.
You can claim your right to your work simply by affixing the standard copyright mark―©. But you will have additional legal advantages if you register your work with the federal copyright office in the event that a lawsuit against infringement of your copyright becomes necessary at some point; therefore, registration is always recommended. Your intellectual property attorney can assist you with the registration in order to ensure that your work receives the full copyright protection you need.
Computer software may also fall into the category of a trade secret. Trade secrets are protected by state and federal laws. A trade secret is a process, formula, system, device, data, research or anything developed by a company that, as long as it remains unknown to others, confers a on its owner a competitive advantage. A trade secret can last as long as the owner of the trade secret makes a reasonable effort to keep it under wraps. Code and the concepts underlying it may fall into this category. Trade secret law will not cover any aspect of software that can be ascertained lawfully, for example through reverse engineering, or developed independently.
A trademark is a logo, slogan, or some distinguishing mark that identifies your product or brand to the public, so that purchasers can distinguish your work from others that may be of lesser reputation or quality. In the realm of software, an example is the readily recognized Microsoft Windows name and logo. Once you develop a trademark for your program, you can protect it by having your attorney register if with the Texas Secretary of State and the United States Patent and Trademark Office (USPTO). When registering your trademark in Texas, it must already be in use in the jurisdiction. It must be distinctive and sufficiently different from any other trademark currently registered with either the Texas Secretary of State or the USPTO that a consumer would not be likely to confuse it with any other.
Getting the Help You Need to Protect Your Software Design
Software as intellectual property is an exploding phenomenon. The law behind it is extremely complex and subject to interpretation and change. You need an attorney with both legal and technical expertise who is licensed and registered with the USPTO to practice this demanding area of law. In Dallas, Texas, you can get the personalized, experienced legal advice and representation in pursuing a patent, trademark, or copyright by contacting the law offices of Yee & Associates. We offer a free telephone consultation, so don’t wait; protect your valuable intellectual property now.