Software often includes some of your company’s most valuable intellectual property. Knowing how to protect software intellectual property begins with categorizing the components of your software, determining which legal protections apply to each part, and taking steps to secure those protections. A single software product may include source code, technical inventions, product branding, and confidential business information. Because intellectual property law protects each of those components differently, protecting your software often means combining copyrights, patents, trademarks, and trade secrets into a single intellectual property strategy.
An intellectual property attorney helps you design and execute that strategy. At Jones IP Law, founder Michael Jones works with inventors, startups, small and medium-sized businesses, and established companies to transform innovative ideas into protected business assets. Drawing on more than a decade of intellectual property experience, a background in mechanical engineering, and extensive work with computer software, machine learning, cloud technologies, and other emerging technologies, Michael develops practical, cost-effective IP strategies tailored to each client’s business goals.
How to Protect Software Intellectual Property
Protecting software with intellectual property law begins by identifying what types of intellectual property your software contains. A software product may include, for example, related components like:
- Source code,
- Product branding,
- Confidential business information,
- User interfaces, and
- Documentation.
Federal intellectual property law applies differently based on what those related components of software contain. Federal intellectual property law offers four primary forms of protection:
- Copyrights—protect original creative works;
- Patents—protect qualifying inventions,
- Trademarks—protect marks (names and logos) you use to identify goods or services; and
- Trade secrets—protect valuable confidential business information.
You may be able to protect your software through a coordinated intellectual property strategy.
How Can You Obtain Software Copyright Protection?
Copyrights protect original creative works. Original creative works include:
- Books,
- Music,
- Movies,
- Photographs,
- Paintings, and
- Software source code.
Because software source code qualifies as an original creative work, federal copyright law generally protects the code you write.
Copyright protection generally begins automatically when you create and save source code in a tangible form. Registering your copyright with the U.S. Copyright Office expands your ability to enforce those rights through the federal courts.
The person who writes original source code generally owns the copyright. Software development, however, often involves multiple people contributing to the same product. Founders, employees, and independent contractors may all write code.
In many cases, software companies own the copyrights to the work their employees create within the scope of their employment. If you use independent contractors, you may need a written agreement to ensure the business, not the contractor, owns the copyright.
How Can You Protect Software with a Patent?
Patents protect inventions, which must be more than abstract ideas. To receive a patent, an invention generally must be:
- Useful,
- Novel, and
- Non-obvious.
Software-related inventions that satisfy those requirements may qualify for patent protection. Yet, software can present unique patentability challenges because many software innovations begin as business concepts, mathematical methods, or desired results rather than patentable inventions. To obtain a patent, your application must describe and claim a specific software invention rather than the underlying idea alone. For example, an application that claims a specific computer-implemented process for improving network security is generally more likely to satisfy patent eligibility requirements than one that simply claims the idea of making a network more secure.
When you apply for a patent, a United States Patent and Trademark Office (USPTO) patent examiner determines whether your invention is patentable. During their examination, the examiner reviews prior art, which includes earlier patents, publications, products, and other public disclosures. If prior art shows that someone else already publicly disclosed the same invention, your invention generally is not new and cannot receive a patent.
How Can You Obtain Software Trademark Protection?
Trademarks protect the names, logos, slogans, and other marks you use to identify yourself as the source of your goods or services. If you develop software, you may attach your business’s trademark or a unique software-specific trademark to help customers recognize that your software comes from your company rather than another developer.
Because trademarks identify the source of a product rather than the product itself, they generally protect your software’s branding. You may register trademarks for your software’s name, your company name, your logo, your slogan, and other distinctive branding.
How Can You Protect Software as a Trade Secret?
Trade secrets protect valuable confidential business information while it remains confidential. Software companies often protect as trade secrets:
- Confidential algorithms,
- Proprietary datasets,
- Machine learning training methods,
- Internal development tools,
- Customer analytics, and
- Business processes.
Trade secret protection preserves the value of the information by keeping it secret.
Because trade secret protection depends on confidentiality, you must take reasonable steps to keep the information secret to maintain its protection. Businesses commonly use confidentiality agreements, restricted access controls, cybersecurity measures, internal policies, and employee training to prevent unauthorized disclosure. If a trade secret becomes public, it generally loses trade secret protection.
How Do You Build a Cohesive Software IP Protection Strategy?
Protecting software rarely means relying on a single form of intellectual property. Instead, you create a coordinated IP strategy to protect all components of your software. Copyrights protect your source code, patents may protect qualifying inventions, trademarks protect your brand, and trade secrets protect confidential business information. Together, these protections create a stronger approach to software IP protection than any one form of protection alone.
Your intellectual property strategy should also evolve as your software evolves. New features may qualify for patent protection, new products may require additional trademarks, and new confidential business information may require additional trade secret safeguards. Periodically reviewing your intellectual property with your attorney helps ensure that your protections continue to support your business as it grows.
Work with Jones IP Law
Protecting software requires understanding what you created, choosing the protections that best fit each component of your software, and adapting your strategy as your technology evolves. Jones IP Law helps businesses build those long-term strategies through personalized, cost-effective intellectual property counsel. Founder Michael Jones combines engineering training, extensive experience in software patents, and more than a decade of intellectual property practice to help clients transform innovative ideas into valuable business assets.
Contact us to learn more about how we can help.
Legal References Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal and other resources during the content development process:
