Software and mobile device applications are a booming business. If you discover an unmet need, or a niche that has not yet been exploited, you can launch a lucrative business. Software development is a fairly expensive endeavor and you will want to protect your investment from copyists who want to make money using your creative initiative and good will. What can you do to stop copyists in their tracks?
Intellectual property law comprises four legal areas: patent, trademark, copyright and trade secret. Each area of law plays a role in protecting your software or mobile application. Let’s briefly look at how each can be leveraged to protect your market share.
Trademark law protects your brand and the good will (reputation) you develop behind your trade name. To understand the power of brand protection, one simply needs to consider iconic brands like Apple®, Microsoft®, Samsung® and others. It does not stop there. Consider the promotional products that accompany popular programs, especially games. Angry Birds®, Mario® and Just Dance® are a few brands that have spun entire industries of promotional products. Additionally, supporting products and plug-ins may develop and you’ll want to control your brand name and its use in association with both complementary products and competitor products.
Computer programs can be copyrighted as literary works. Computer programs have a certain artistic style in the way they are composed. Some are more “elegant” than others. This can be useful, but copyright protection can be limited. It can be designed around fairly easily. Source or object code can be rewritten to avoid literal copying, or written in another computer language with slight differences in functionality.
Graphics may also be protected under copyright law as visual arts. However, infringement requires a fairly close duplication.
Protecting fonts or icons can be done with a design patent. Patent protection is generally stronger than copyright protection, especially in enforcement situations. These are not mutually exclusive and can be used to bolster one another.
Protecting the behavior, logic, process, and system functions of software or mobile applications requires a utility patent. Patents protect the algorithm of the program, that is, the process by which a function is accomplished. Patents offer strong protection against copying.
Patent protection for software is relatively hard to obtain and therefore, has significant value to the owner. Business method patents are an ever-evolving body of law so it can be difficult to predict what will ultimately be granted a patent. Software patents can take years to prosecute, sometimes exceeding the life cycle of this rapidly changing technology. The new patent laws offer a “fast track” option for accelerated patent processing if you can budget an extra $5 – 10,000. The greater the demand for products and services using the computer program, the more value in the patent. Having a limited monopoly, you control access to the use of the software, enabling you to monetize the invention and rake in the profits. The difficulty for most business is that patent protection must be sought before the business knows if the software product or service will be a commercial success. It can feel like a big gamble and a significant drain on start-up budgets.
However, because of the cost and time it takes to secure patent protection, some software developers chose to rely on trade secret protection to protect their program. They use various mechanisms to prevent users form accessing the source and object code. If you can’t access it, you can’t copy it. This works well if you can restrict access to the source code and don’t rely exclusively on open source code in your programming. If your program requires access to the source code to successfully implement the program, this is a riskier proposition. (For example, if bridges are required for your program to work with other third party programs).
Working with an experienced intellectual property professional can help you understand all of the options potentially available to protect your product. Together you can develop a plan best suited to both your business objections and budget.