IP Protection for Software

The Internet, business, industry and government are heavily, if not entirely, dependent upon computer technology that in turn depends upon practically infinite intangible and modular software applications.

Software applications have existed for a half century, but application of intellectual property rights to software products is comparatively recent. Traditionally, copyright has been the most common software protection. Recently, however, patent protection has developed as perhaps the predominant, preferred form of software protection.

As we have discussed in our discussion of copyright basics here, copyright protects original works in the tangible, fixed form in which it was created. An original software work is legally protected by copyright copyright/software, because upon its creation copyright protects the expression of the work, but not a work’s underlying idea. Copyright protection of an original software work is consistent with the primary purpose of copyright protection generally: to promote the exchange of information and advancement of ideas that may benefit society and to protect an author’s economic interest in his or her creative work. A copyright holder has the exclusive right to make copies, prepare derivative works, and distribute copies for the duration of the author’s life plus seventy years. The major advantage of copyright protection lies in its simple procedure of protection.

Historically, patents were not preferred for protection of software-related intellectual property. Software was more associated with copyright because of the nature of the product analogized to the literary work of an author. But the limitations of copyright to protect only an original work in the tangible fixed form rather than an idea has led to patent protection, since patents do protect ideas an concepts, and their reduction to practice.

Patent law applies to inventions in any field of technology without discrimination, including software. Increasingly, the ways inventors and users of software thing thing about and describe it as a collection of processes, as a unique machine, or both, enabling the protection of the inventive concepts and ideas behind an original program. And this is where the usefulness of copyright alone for software has its limitations.

In 1989, the United States Patent and Trademark Office’s (USPTO) Official Gazette published guidelines for software patenting, highlighting that a computer directed by a computer program is a statutory machine. Consequently, patent law recognizes that computer software could be patented as a machine, because a general purpose computer becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.

A software patent owner may prevent others from making, selling, or using a patented invention for twenty years from the filing date of the patent application. Recently and currently, patent protection has supplemented if not supplanted copyright protection of software as the premier intellectual property strong protection, and in many respects has become the method of choice for effective protection of original computer programs.

The copyright and trademark lawyers at Lubin Austermuehle have over thirty-years of experience defending and prosecuting intellectual property claims for large and mid-size corporations and businesses. We are knowledgeable regarding the changes and complexities of copyright and trademark law. We are committed to fighting for our clients' property rights or defending them against baseless infringement claims at both the trial and appellate court levels. We have successfully defended large corporations in multi-million-dollar copyright or trademark infringement suits and regularly prosecute complex copyright infringement cases for computer software having achieved large six and seven figure settlements for our clients. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated intellectual property, trademark and copyright cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.