Your Software Probably Doesn’t Need a Patent. Here’s What it Needs Instead:

So, you’ve created a piece of software. Maybe it collates information from lots of different places, allowing streamlined lead generation for clients. Maybe it it’s a new CRM system for clients to manage their data. It might be an app or a web-based platform.

That is incredibly exciting! So how do you protect it?

Many software clients ask us whether they can protect their software by registering a patent. Unfortunately, the chances of your software being patentable are VERY low.

You see, patent protection is a VERY specific and ‘rare’ type of intellectual property (IP) – much rarer to come by than copyright or trademark protection in the world of IP.

What is patent protection?

Many get confused between trademarking and patents. It is important to note that patents are much rarer to come by than copyright and trademark protection. Essentially, patents protect ‘inventions’ and you need to meet specific criteria to be eligible. Your invention must be something that can be made or used, it must be new and it must be inventive, not a simple modification of something that already exists.

It can be VERY expensive and difficult to obtain a patent. For that reason, it’s a very lengthy process and you need a specialist lawyer to deal with them. This is a BIG commitment – if your product doesn’t meet the criteria, we wouldn’t recommend attempting it.

Many of our software clients come to us and say ‘oh, I’ve created this new platform that does so and so’ and I want to patent it. Although that platform is absolutely fantastic, it’s likely the premise of what it does isn’t actually new or inventive (like a CRM or lead generation system).

A patent has to be unique and has to help the industry as a whole. The key phrase is ‘taking an inventive step’, like Alexander Graham Bell inventing the telephone.

In short, unless your software does something that’s never been done before, it’s likely not patentable.

How do you protect it instead?

Now, just because patent protection isn’t available, this doesn’t mean you shouldn’t take steps to protect your software so it can’t be copied. Instead, you need to rely on copyright protection.

Copyright exists as soon as you create something, like your software and all source code that’s been written. Although you’re immediately awarded copyright protection in the UK, it’s your responsibility to ‘tell the world’ that you own it. It MUST be recorded in writing.

How do you go about doing this?

There are a few options:

1) Licence agreement

This is key to protecting your software. A software licence is a contract between the software owner and any customers or users of the software. Here, you can outline the rules about its use – who and how, and what can’t be done with the software. Your software represents you hard mark and know-how, so you need to include restrictions. For instance, you want to make clear that the software is your copyright, it belongs to you and it can’t be copied, distributed, sold or sub-licensed. You absolutely don’t want to accidentally sign over the rights to anyone else!

By having a robust licence agreement, this will prevent:

  • Others copying the software and its source code
  • Others from distributing the source, whether for free or for commercial use
  • Anyone from making any derivative software.

2) Copyright disclaimers

Cover all of your bases and put short copyright disclaimers in all necessary legal documentation relating to the software – any sales pages, landing pages, or even marketing material.

3) Consider using an NDA

Now, people often say that NDAs aren’t worth the paper they’re written on. I tend to disagree here, provided you have a clearly written and comprehensive NDA suited to the software and the purposes you’re sharing the software with another. The NDA will set out the confidentiality obligations, what can’t be done with your IP and what happens if the other party breaches the NDA.

We’d highly recommend having an expertly written NDA for when you approach others about your software, such as investors or developers. It will be there to fully protect you and your IP.

Here at Jamieson Law, we’re passionate about helping businesses in software sphere protect the hard work that goes into what they do. If you want to make sure your software business is fully, legally bullet-proofed then get in touch!

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