Intellectual Property Protection for Software: What You Need to Know

From the computers we use to how medicines are produced, software-based innovation has infiltrated nearly every aspect +of our daily lives. Houssem Arbaoui, Business Intelligence Consultant at Questel, discusses how to protect software intellectual property, current trends, and the monitoring tools available to help creators safeguard their creations.

Intellectual Property (IP) is a key element of innovation in technology across nearly every sector. It is not only relevant to innovation in traditional industries, such as automotive or chemical, but also to the computer industry, given the number of computer programs or software we use in our daily lives.

Computer Software: A Vast and Expanding Market

According to a study by Statista, which specializes in market and consumer data, the software market revenue is expected to reach US$659.00 billion (bn) in 2023, with a major part of the revenue being generated in the United States ($338.20bn). The largest market segment is enterprise software, with a projected market volume of $271.80bn in 2023 and a projected annual growth rate (CAGR 2023-2028) of 5.42%, resulting in a market volume of US$858.10bn in 2028. In light of these vast numbers, it is obvious that establishing effective intellectual property protection for software is crucial.

Without instructions, a computer cannot operate. These instructions, known as computer programs or software, are built into the computer or other device but are often stored, reproduced, and distributed on portable media or transmitted online. This means that, as soon as they are created, they can be reproduced easily, at very low cost, and in unlimited numbers.

Copyright protection applies to the "literal expressions" of software. However, it does not protect the "concept" that lies behind the software which is in many cases an essential element of its commercial value. Since these concepts behind software often provide technical functionalities, such as the control of machines or the processing of data, intellectual property protection for software through the patent system is also available to protect these technical functions.

Getting the Basics of Intellectual Property Protection for Software Right

Software protection refers to the steps a software developer can take to prevent unauthorized use of their software. There are many kinds of techniques used to deal with this issue:

• On-site protection: In this stage, the developer should enforce their license agreement and use anti-debugging and anti-reverse engineering techniques to protect their IP from theft.
   
• Broad protection: Software can also be protected by both copyright and patent. These two rights will then be complementary: the copyright protecting the content of the software and the patent for the technical invention resulting from it. Often, the whole software will not be eligible for patent protection. Only the technical invention resulting from the software can be covered by a patent. In other words, only the technical elements used by the software will be patented [1]. 

Trademarks

Names, symbols, phrases, and even sounds used with products or services can be registered as trademarks. Reputed brands should consider registering trademarks for their brand names, tag lines, and product and service names to protect the output of their creative ideas [1].

Copyright

In most jurisdictions, intellectual property protection for software through copyright is automatically granted when any new code is created and recorded on disk. However, the rights afforded by copyright law are limited to copying the computer code. Copyright law never protects the idea behind the software. In other words, if someone looks at the software and ‘steals the idea’ by writing new code from scratch that performs the same function, copyright law will not stop then. A software patent, on the other hand, might [1].

Software Patents

There is now good evidence that many types of computer software, as well as mobile applications, can be protected by patents in the U.S., but this was not always the case. The U.S. Patent and Trademark Office (USPTO) first ruled in the 1960s that computer programs were generally not patentable. The U.S. Supreme Court considered the issue three times in the 1970s and 1980s, initially appearing to agree with the USPTO that most computer software was not patentable, but later relaxing its position. In the 1990s, it was accepted that any software that produced a useful result was eligible as long as it met the other patent requirements. But in the 2000s, culminating in the 2014 Alice v CLS U.S. Supreme Court decision, the courts narrowed the type of eligible software. Currently, intellectual property protection for software through the patent system is possible, but only if it is not related to an abstract idea. In the last 20 years, the rapidly growing software industry has greatly increased its tendency to patent. Larger companies are supposed to have a stronger tendency to protect their IP through patents.

A software patent is any patent that protects computer software. Patents for software can cover a stand-alone computer program, an application for a mobile device, or software embedded in a mechanical device. For software to be patentable, it needs to satisfy the same requirements as any other type of invention. In particular, a software invention must be new, valuable, and non-obvious. A fourth condition for patentability is that the invention must be capable of being protected by a patent. As mentioned above, the whole software will often not be patented. Only the technical invention resulting from the software can be covered. In other words, only the technical elements used by the software will be patented [1].

Specificity of Open-Source Software

The specifics of the open-source license in question determine the exact conditions of use. That is, if a developer uses open-source code as the basis for a new product, they may be able to claim ownership of the new product. However, they will still have to comply with the terms of the open-source license for the code used. This means that they must make the source code of the new product available to others and credit the original authors of the open-source code.

There are different types of open-source licenses:

• Copyleft (or gauche d'auteur in French) is the authorization given by an author "to use, study, modify and distribute work", whether it is a text, a work of art, or a computer program. This means that a user of the copylefted work can modify, reuse, and distribute it, but is bound by the same freedoms as the original work. In other words, if a developer wants to modify software and share it again, the modified software will necessarily be copylefted. It is not possible, therefore, to distribute software with a copyleft license under a proprietary license.
  
  There are several levels of copyleft:
  
  • The strong copyleft or strict copyleft: the software, whether modified or not, and its components can only be redistributed under the initial license.
  • Standard or low copyleft: The software, whether modified or not, may only be redistributed under the original license, but new components may be added and redistributed under another license, or even under a proprietary license.
   
• The General Public License or GNU GPL is the most widely used free software license: more than half of the free software distributed today is licensed under the GNU GLP. These licenses are recommended if you want to make your code accessible and reusable by as many people as possible. They have a strong copyleft.
   
• The MIT license takes its name from the Massachusetts Institute of Technology (MIT), but the term is misleading because, in reality, MIT uses several licenses. The MIT license is a very permissive license with few constraints on the reuse of code and no copyleft. It is compatible with many licenses, including the GNU GPL, and includes several license models, including the Expat license and the X11 license. The MIT license is similar in many ways to the new BSD license.
   
• The BSD license is a permissive, non-copyleft open source license, compatible with the GNU GPL. It is recommended not to use the original version because of a restrictive advertising clause: the copyright notice is mandatory in any advertisement or document provided with the software. The new version of the BSD license no longer contains this clause.
  
  Among the most popular BSD licenses is the Apache license. This is a permissive license, compatible with the GNU GPL v3, but not v2. It is recommended to use the Apache 2.0 license for large programs, especially to avoid the pitfalls of patents.

How to Protect Software Intellectual Property: Monitoring Tools

IP and software are complementary from another perspective, given that there are various software tools and platforms that can be used to monitor and protect IP, including:

• Digital rights management (DRM) software: This type of software controls access to and use of digital content and can prevent unauthorized copying or distribution.
   
• Content management systems: These systems can be used to track and manage the usage and distribution of digital content, and can include features such as watermarking, encryption, and access controls.
   
• Copyright management systems: These systems can be used to manage and track the copyright status of digital content, and can include features such as registration, licensing, and royalty management.
   
• Brand protection software: This type of software can be used to monitor online platforms, such as social media and ecommerce sites, to detect and prevent counterfeit products and trademark infringement.
   
• Patent management software: This type of software can be used to manage and track the patent process, from filing to maintenance, and can include features such as document management, workflow management, and analytics.

Prepare for Success in Your Intellectual Property Protection for Software

It is increasingly clear that software innovation is reshaping the entire way we do everything, from how we make movies to how we produce medicines. Software is no longer just a tool that allows us to work even when we are away from our desks. Today's software innovation is an engine that powers vast sectors of our economy.

However, software creation is not a simple matter from an IP perspective. Getting a creative idea and design stolen is a constant threat, and seeing someone else's business thrive from your software ideas is the worst nightmare for many businesses.

To move forward with confidence, therefore, it is better to take appropriate measures to protect your software IP from theft [1]. No matter how small the idea may seem and how little the software will achieve, it is important to protect the IP of your software.

Contact our specialist IP Consulting team to find out more about how to protect software intellectual property, or speak to your chosen IP law firm for tailored legal advice.

Houssem Arbaoui is a Business Intelligence Consultant at Questel, specializing in IP and software topics.

[1] Questel does not provide any legal advisory services. Legal services are provided by independent IP attorneys on the basis of a separate engagement agreement between you and, if you wish to, a partner IP attorney firm.