Through at least one of four ways, namely copyright protection, patent protection, Nondisclosure Agreements (NDAs), and trade secret protection.

First, source code by itself cannot be patented.  However, this does not mean that it cannot be protected.  Specifically, registering a copyright on source code can be relatively easy/cheap to do, and will offer a nontrivial amount of protection to the source code’s author.  Furthermore, this registration can usually be obtained in only around three months.  While patent protection on software related innovations is generally more desirable than copyright protection, proceeding with a copyright registration on the source code is a good course of action because software patents are much more difficult to obtain than other forms of patents, such as mechanical device patents.  Thus, if an inventor is unsuccessful in procuring a software patent on his or her invention, he or she will still be protected in some regard by virtue of having a registered copyright on the source code.  It is noted that registering the copyright would not protect the actual idea behind the code.  That said, it would protect the source code from being copied and used by another without consent.  Accordingly, copyright registration is easy/cheap protection against plagiarizers.  Furthermore, copyrights last a long time.  They can have a life of either the life of the author plus 70 years, or for works made for hire 95 years from the first publication or 120 years from creation, whichever expires first. Additionally, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.

Some important considerations to keep in mind when registering a copyright on the source code include: Who are the authors of the entire code?  Which portions were authored by someone else?  Is the code all textual?  What is the title of the program as it appears on the material about the software application?  What year was the code completed?  Has the code been published?  If so, when?   A work is considered to be published under copyright law if you sell, distribute or offer to sell or distribute copies of your software application to the public. If it is displayed at a trade show, that’s also considered to be a publication.  Is the software part of a larger work?  If it is a work for hire then the hiring party is the author.  What is the author’s birthday (this is optional, but recommended to further identify author as being associated with the work)?  What is the author’s citizenship?  

Second, regarding patent protection, software patents are generally more difficult to procure and litigate over than others.  The big reason why is patent eligibility.  Software patent applications are rejected more than any other type of patent applications, very often because patent examiners say their subject matter is directed to an abstract idea, something the courts have said is not patent eligible. As such, to be patent eligible, the software needs to perform features that are novel and proprietary. Additionally, the claims in the patent must be directed to the process of execution of the software code on a computer, or, a software-implemented invention. Furthermore, the software that the invention uses must not be known in the world.  Another important consideration is that the software needs to be connected to a machine and a computerized process, not simply thoughts or business methods.  If it is not, a court will likely say that you are improperly trying to patent an abstract idea. 

That said, procuring a software patent will allow you to keep others from using or selling your invention, even if they haven’t plagiarized actual parts of your software code.  Patents are used to prevent others from using, importing, or selling your software.  Before determining if patent protection is right for you, a good first idea is to perform a search to get a sense of the existing prior art, that is, unless you are confident in the novelty of your invention.  

Finally, if you determine that a patent is not the best option for you, there are other routes to consider for protection, namely NDAs and trade secret protection.  NDAs would offer you protection in the event that individuals were to disclose confidential information covered in the NDA.  Regarding trade secret protection, in order to successfully sue someone for trade secret misappropriation, it must be established that there was a trade secret and that someone else used it improperly.  In general, plaintiffs have to show that they treated the information as a valuable secret, and also show that they had put in place measures to guard it as such.  Some steps that can be taken include not distributing code into the open source community, having confidentiality policies that are written and acknowledged, having NDAs, being vocal about confidentiality policies, marking code as confidential, documenting entry and access to the trade secret, and documenting the efforts that went into the code’s creation.  Doing these steps, and more, will go a long way toward helping a plaintiff succeed on a claim of trade secret misappropriation.         

In summary, when trying to protect your software innovations, copyright registration, patent procurement, reliance on NDAs, and trade secret protection should all be considered to find what is most suitable. 

This article was authored by John P. Powers, is intended to keep readers current on matters affecting intellectual property and is not intended to be legal advice. If you have any questions about its content, please leave a comment below.

©John P. Powers, 2021, all rights reserved.