Five Things Every Software Developer Should Know About Intellectual Property

It is essential for every Software Developer to have a firm grasp of intellectual property rights and how they apply to the Software Industry. Intellectual property is an umbrella term for various types of rights individuals or businesses can have in their names, creative works, and inventions. Software developers need a solid understanding of their rights to develop and protect a brand, ensure exclusive ownership of their creations, and keep their work confidential to create and maintain an advantage in this competitive market.

Software as Patents
A patent entitles an inventor to exclude others from making, using or selling the claimed invention for a period of 20 years. A Software Developer can get a patent on software inventions much like a Mechanical Engineer can get a patent on a new machine or device. To obtain a patent, your software or algorithm must have a very high level of originality and you must disclose the “recipe” for your invention to the public.

With the rapid growth of the technology industry, software patents have become more common. Some examples of software patents include Amazon.com’s “one-click buy” patent (US Patent No. 5960411) and the popular MP3 audio format (US Patent No. 5579430). Software developers who create unique and novel software should consider obtaining patent protection, especially if they wish to market and sell their software to others.

Copyrighting Software
Regardless of whether or not a Developer can get a patent, copyright protection is available for the software. A copyright is a set of exclusive rights given to an individual or business that has created a literary or artistic work (including computer software). A copyright gives the owner the exclusive right to make copies of the work, distribute copies of the work to the public, and create derivative works based on the software.

The key difference between a patent and a copyright is that while a patent can protect you from people who try to imitate your software, software copyrights have a narrower scope and will only protect you if someone copies actual executable or source code or graphics from your software. Copyright protection also lasts much longer than patent protection. However, you must keep in mind that to invoke these protections, your must file for and receive a copyright registration.

Who is the author and who is the owner?
Under U.S. copyright law, the author of a work generally owns the copyright. However, when it comes to software development, the issue of copyright ownership can be a complex matter. Under the work-made-for-hire doctrine, if a Software Developer is working as the employee of a company, then the employer is considered the “author” and owns the copyright. This is true even if the Developer(s) strategize, plan, develop, and test the new software.

However, if the Software Developer is working as an independent contractor, rather than as an employee, then the Developer is considered the owner unless there is a written agreement to the contrary. The company for which the software is developed may have a license to use the software, but it won’t be the owner of the software and may not be able to sell or create new versions of the software.

It is important that both Software Developers and Software Companies 1) understand at the beginning who will own any copyrights that result from the work, and 2) create the necessary contracts to ensure that ownership ends up where it was intended.

Trademarking the Software & Company Name
Before marketing software, a Software Developer should take steps to develop and protect a brand name for the software. A trademark is any word, name, symbol, or device used to indicate the source of goods or services. Trademarks can be used to protect your company name or product name, domain names, images, symbols, logos, slogans, colors, product designs and product packaging. Registering your trademark will help you prevent others from using your mark in a way that might confuse customers or damage your business reputation.

Protecting your brand is especially important if your software is not entitled to other forms of protection. For example, an Internet browser may not be patentable, but a trademarked brand name can help ensure that the public perceives the browser as unique product associated solely with your company. Protecting your brand names can also help prevent others from interfering with your company’s Internet presence through cybersquatting.

Keeping the Software a Trade Secret
The final way a Software Developer can protect his or her rights is by keeping the software as a trade secret. Trade secrets provide another way to protect material that could otherwise be copyrighted or patented. While copyrights and patents are made public and limited in duration, trade secrets are private and can last indefinitely – so long as you actually keep them secret and use reasonable measures to protect their secrecy. Trade secrets also can extend to things, such as customer lists, that are not easily protected by copyrights or patents.

Imagine a clever software developer who writes a program that predicts the Stock Market with 99% accuracy. If he patents his software, in 20 years, everyone can create, use, and sell similar software. However, if he keeps the software a trade secret, he can control the source code indefinitely and no one will ever know how he achieved such accuracy.

However, it is essential that you take sufficient steps to develop a Trade Secret Protection Program for your software. A Software Developer must maintain the confidentiality of the source code to ensure trade secret protection. A proper Protection Program will include steps like requiring confidentially agreements, ensuring limited access to source code, having password protections, and limiting the number of people with access to sensitive information. If you take appropriate steps and your software qualifies for trade secret protection, you can prevent others from taking or using the source code, development processes, and algorithms without your permission.

Conclusion
By understanding of the different types of intellectual property and issues related to software development, you will be better equipped to protect the rights in your software. If you encounter any of the issues discussed above, you should consult an attorney to make sure you are fully protecting your intellectual property rights. If you are a software developer and you have any questions about your intellectual property rights, you can contact Daliah Saper of Saper Law Offices at (312) 527-4100 or dsaper@saperlaw.com.

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