Options for Protecting Original Software Code

Protecting your original software code allows you to gain control over how your idea is distributed to the public. Do you want it to be open source? Licensed? Kept secret?

Furthermore, without legal protection, you could even be prevented from using your own code in certain situations.

There are three main ways to protect your code: trade secret, copyright, and patent.

Trade secret

A trade secret is proprietary information that gives an individual or company a competitive advantage. You can protect code – as well as ideas and concepts – as trade secrets.

For something to be a trade secret, you don’t need to file or register anything with the government. Simply take reasonable measures to preserve its secrecy.

Treat the software code as a trade secret by using encryption methods to protect the code. Also, use nondisclosure, non-compete agreements, and confidentiality agreements to prevent employees and business associates from misappropriating the software and any other information crucial to the innovations you are creating.

A trade secret can be maintained indefinitely – or at least until the trade secret is discovered or created by someone else using fair means, such as reverse engineering or independent development. Trade secrets are not infringed, but they can be subject to theft.

What are the downsides to trade secrets? As mentioned, if someone else discovers the trade secret by fair means, they can use it. Also, if someone else discovers it and then patents it, they can prevent you from using it.

With trade secrets, your protection is the secrecy itself. But once the idea gets out into the world through fair means, there is not much you can do about it.

Copyright

Copyright protects the expression of an idea. It lasts for the duration of the author’s life plus fifty years. If it was created by an employee as work-for-hire, it’s protected for 75 years from publication.

Copyrighting can be used to protect the source code, the object code, and user interfaces. It also protects against indirect copying. For example, translation of the code into a different programming language. When you copyright software, you gain exclusive rights to copy the software, create derivative or modified versions, and distribute copies to the public by license, sale, or otherwise.

Unfortunately, with copyrighting, your ideas and concepts are not protected. However, when you submit your copy for the copyright application, you can designate the trade secret portions of the code. Those lines can be redacted, so the public does not have access to them. You only have to reveal enough code to show its uniqueness.

You may have heard that you gain copyright protection automatically upon creation of a work. This is true. However, if you want to enforce that copyright, you need to register the copyright with the US Copyright Office.

If a copyright application is filed before publication or within a certain time period afterwards, you can seek additional remedies in court, including the ability to seek statutory damages and recover attorney’s fees. Since the process of fighting copyright infringement is costly, this is important “insurance” to have.

Copyright registration is relatively inexpensive, but it does take some time. Though it may be quicker than other forms of protection, you should still expect the process to take around 18 months.

Patent

Getting a patent protects the idea itself. Where software is concerned, you can protect inventions such as algorithms or the architecture. A patent gives you 20-year exclusive rights to make, use, and sell that invention.

One example of what can happen is you file a provisional patent application with a non-publication request. The United States Patent and Trademark Office will assign a patent examiner within 18 months of receiving the patent application. The patent examiner then reviews the application and issues an “office action” in which they ask for clarification or for more information. 

The total process for obtaining a patent registration is three to four years.  You would then be able to notify your employees and any potential partners, and include in your licensing agreements that you have a patent pending on the software. You would also have clauses within the licensing agreement about nondisclosure of the software code.

There are a number of downsides to patents. First of all, after 20 years, the invention enters the public domain; at that point anyone can make, use, and sell your invention. Additional downsides include:

  • You must disclose your invention in public to submit an application.
  • The process is expensive.
  • There is no guarantee the patent will be granted.
  • You must pay annually to maintain the patent.
  • As mentioned above, the process is lengthy; typically around 40 months (more than three years) to get the patent.

Which Protection Option Is Right for You?

As with most things in business and life, what’s best varies depending on the particular situation. Patents are slow – and not guaranteed – so if you need protection fast, one of the other options is likely better. Worried about employees and business partners with loose lips? Keeping your code a trade secret may not be the best idea.

The truth is that there are pros and cons to each of these methods. Many businesses even opt for multiple forms of protection. If you’re going to go this route, though, it is important to note that some forms of protection preclude the use of others. For example, you cannot claim a trade secret for information in a patent application or issued patent, since it was publicly disclosed.

Having trouble figuring out what’s best for your particular product or situation? It’s advisable to seek legal advice on the best intellectual property practices based on the specific details of your particular case.