Intellectual Property in Software
02 November 2018
Intellectual property or “IP” is something created that is unique to the author or inventor; the idea alone is not protectable, but the physical output is – for example, if you hum the tune to a new song, it wouldn’t be protected but the written score of that song could be protected by copyright. IP doesn’t always exist in a physical form (e.g. an invention) but it must be distinguishable, and it often has a value attached to it. The law lets you protect IP in a number of ways depending on the nature of it.
The law surrounding technology, particularly software, isn’t straightforward given the lack of clarity around the definition of a “computer program”. It is generally recognised that in this context, the everyday, technical term can be used – that being a set of directions which tells a computer how to do something. There are two main ways the law can protect software – copyright and patents.
Copyright is an unregistered intellectual property right in the UK which protects the form and expression of an idea. There is a common misunderstanding that an idea can be protected; however, copyright only protects the form of original literary work (i.e. what you write down) and does not create a monopoly over the idea itself.
As you would expect, copyright protects the author’s work from being copied but it does not prevent others from creating similar work in the same field so there are limitations when relying on copyright in a tech context. This is a particularly important distinction when it comes to protecting software. It is the source code and object code that are protected by copyright and you must turn to patents to protect the idea within the software itself; the two rights in tandem give you the best protection.
There aren’t many cases on copyright infringement relating to software, but it can be tricky when aspects of the user interface of your software are the same as another program. The general approach taken by the courts is that you can’t claim copyright infringement where only aspects of the user interface of your computer program are being used by someone else.
Copyright lasts for the life of the author plus 70 years. As this is an unregistered right, you do not need to do anything to register your work and it will automatically apply to your original software coding, making it a cheap and more straightforward way to protect what you have created.
Unlike copyright, you must apply to register your invention as a patent and, unfortunately for new businesses, there is a significant cost attached to the application and, if granted, you will have to pay renewal fees to keep your patent registered. There are also different applications processes depending on which country you wish to register your patent so make sure you register your invention where you, or are intending to, trade.
You might be asking yourself ‘why bother applying for a patent if my source code and object code are protected by copyright?’ Well, if the USP in your software lies in the algorithm, method, system or processing of data in some way, this won’t be caught by copyright and you’ll be left with no protection at all (meaning someone else can steal your idea and you won’t be able to do anything about it!).
Patents will only be granted if an invention is new, involves an “inventive step” and is capable of industrial application (and isn’t specifically excluded from being a patent). In practice, this means that things like discoveries, scientific theories and mathematical equations are not patentable. It also means that computer programs are not strictly patentable. However, the application of the computer program can be registered as a patent if it has “technical character”. The test for this is whether the invention makes a “technical contribution” to what is already known in the industry. Basically, it has to add something over and above what already exists and improve on the operation of the computer itself.
In 2013, HTC challenged four of Apple’s patents relating to computer software used as part of their most recent iPhone. Apple had to prove that its “Slide-to-Unlock”, “Photo Bounce Back”, “Multi-Language Text” and “Multi-Touch” patents were not excluded software. After appealing the lower court’s decision, the Court of Appeal agreed with Apple that these features of its iPhone were patentable as they improved the operation of the device through better feedback and control via the user interface. The courts shed some light of how this is determined and described the test as ‘whether a program makes a computer better in the sense of running more efficiently and effectively as a computer’.
This is a particularly complex area of the law so we would advise you to seek advice from an IP expert to consider whether your software meets this criteria before incurring the costs of an application.
If you decide to go ahead and register a patent, you will need to clearly explain your invention and give worked examples of it in practice as part of the UK application process. These are published as part of the application process so if your patent isn’t granted, you’ve just given your competitors a detailed summary of your work…
We are, by no means, discouraging the registration of patents. Once a patent has been granted it can be a great asset to your business! It is more attractive to potential investors and generally easier to obtain financial backing to get your invention off the ground. It also gives you the option to license your invention to others which, not only provides your business with a source of income but may allow for different ways of using your software. There are plenty of pros and cons so think carefully about the right approach for your business.
Why is IP important?
IP rights, concepts and applications are talked about a lot in the tech world but why is it so important? Making sure you have adequate IP rights is crucial for a number of reasons:
- it can prevent third parties selling and making money from your product;
- it restricts others from copying your coding;
- it can be a valuable asset for your business and help attract potential investors;
- helps protect brand identity (just look at the Apple v Samsung case!);
- it may even act as a source of income if you agree to license your IP for a fee.
Whilst we appreciate that start-up businesses don’t want to spend money on legal advice, it is crucial that you know how to protect your product and this is particularly important in the technology industry! Speak to an expert and take advice at the outset. It is more difficult (and costly!) to protect your IP when you think someone’s copied it and, if they register a patent before you, there’s not much you can do about it as registration is on a first-come-first-serve basis.