People talk lots within the information technology business about “intellectual property rights.” But what are they? How do they apply to software technology? Why do you have to protect them? How does one protect them?
Intellectual property rights are the inspiration of the software industry. The term refers to a variety of intangible rights of ownership in an asset like a software program. Each belonging “right” is itself an asset, a slice of the ownership pie. The law provides different methods for shielding these rights of ownership supported by their type.
There are essentially four varieties of property rights relevant to software: patents, copyrights, trade secrets, and trademarks. Each affords a special form of legal protection. Patents, copyrights, and trade secrets are accustomed to protecting the technology itself. Trademarks don’t protect technology, but the names or symbols accustomed distinguish a product within the marketplace.
A patent may be a twenty-year exclusive monopoly on the proper to create, use and sell a qualifying invention. This legal monopoly is taken into account a present for the time and energy expended in creating the invention. In return, the invention must be described well to the government agency, which publishes the knowledge, thus increasing the number of technical knowledge available to the general public.
Software patents will be extremely powerful economic tools. they will protect features of a program that can’t be protected under the copyright or secret law. as an example, patents are often obtained for ideas, systems, methods, algorithms, and functions embodied during a software product: editing functions, user-interface features, compiling techniques, software package techniques, program algorithms, menu arrangements, display presentations, or arrangements, and program language translation methods.
Penalties are stiff and include triple damages. Once a patent for an invention is granted, subsequent “independent” (i.e., without access to the patented technology) development of the invention by another inventor continues to be considered infringement.
While a patent can protect the novel ideas embodied during a software program, a copyright cannot. Copyright protection extends to the actual form during which a thought is expressed. within the case of software, copyright law would protect the source and computer code, further as certain unique original elements of the computer program.
As discussed in last month’s issue, the owner of a copyrighted software program has certain exclusive rights (with some exceptions): the correct to repeat the software, create derivative or modified versions of it, and distribute copies to the general public by license, sale or otherwise. Anyone exercising any of those exclusive rights without the permission of the copyright owner is an infringer and subject to liability for damages or statutory fines.
The prerogative to regulate duplication protects the owner of copyrighted software against the competition that might result from verbatim copying of the program’s code. Copyright law also protects against indirect copying, like an unauthorized translation of the code into a unique programing language.
Copyright protection arises automatically upon the creation of an explicit work of authorship. there’s no must “apply” for copyright or register the copyrighted add order for cover to exist. Generally, the duration of a copyright is that the author’s life plus fifty years. within the case of software created by an employee within the course of his or her employment, the resulting “work made for hire” would be protected by copyright law for seventy-five years from publication.
In contrast with patents, independent development of a copyrighted work may be a defense to an allegation of infringement. Imagine, though, how unlikely it might be for the identical thousands of lines of code to be created independently by one not engaged in unauthorized copying.
A secret can theoretically last forever — for as long as its owner uses reasonable efforts to stay it secret and some other person doesn’t independently create or “discover” it.
Many features of the software, like code and also the ideas and ideas reflected in it, are often protected as trade secrets. This protection lasts as long because the protected element retains its secret status. Unlike patents, secret protection won’t reach elements of software that are readily ascertainable by lawful means, like reverse engineering or independent development.
Trade secrets aren’t subject to being “infringed,” like patents and copyrights, but are subject to theft. Their position as a protectable material possession right is going to be upheld if the owner can prove the secret wasn’t generally known and reasonable steps were taken to preserve its secrecy.
Maximizing the amount of a software asset critically depends on understanding the character of the property rights involved and the way best to use the available varieties of legal protection to safeguard those rights.