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08.06.2011

HOW TO PROTECT SOFTWARE -

THE SYNERGIES BETWEEN INTELLECTUAL PROPERTY RIGHTS

 

How can software be protected against copying? You might be told that software is not patentable.

A statement which, at least, is unnuanced...

 

COPYRIGHT 

 

There is a specific legislation for the protection of computer programs which provides a copyright protection for computer programs. However, copyright merely extends to the expression of the program in the form of either source or object code. It does not protect the functional features of the software, the way the program works.

 

Functional features may fall within the scope of patent legislation.

         

PATENT 

 

The European patent legislation provides that computer programs as such are not patentable. However, this exception is to be interpreted narrowly.

 

According to established European case law computer implemented inventions can be patented if they involve an inventive technical contribution to the prior art, irrespective of whether they are implemented by hardware or software. If computer programs are solving a business problem rather than a technical one, they are as such not patentable, e.g. a computer program for encouraging loyal buyers by giving a discount on future purchases.


Computer programs can thus be patentable if there is a further technical effect. E.g. a computer program designed to enable a faster communication between mobile phones with improved quality of voice transmission or a computer program designed for a more secure operation of the brake of a car. Such a further technical effect is accepted quite rapidly by the European Patent Office. This is shown by the number of patents in the relevant category of ‘Computer systems based on specific computational models': more than 25.000 patents are recorded!

 

INTERNATIONAL ASPECT


It is to be noted that in other jurisdictions such as the USA, software patents are more common and even more easily to obtain. For Belgian/European software developing companies, this may be an interesting and effective way to protect their software against American competitors providing their software in Europe or other competitors which are providing software in the USA.

 

!!! IMPORTANT: consider a patent before making your software available to the public! Novelty is an essential validity condition.  If the invention is disclosed in any way to the public, it will be considered not to be new anymore.

 

TRADE MARK


Finally, do not forget to protect the name which you are using to identify your software. The trade mark is the sign which enables the customer to know the product is originating from your undertaking. Investing in your trade mark may help you to build up a strong reputation. It may also be a strategy to commercialize your new software product under a strong trade mark and to valorize your patent by licensing it to others.

 

In most European countries a trade mark is not protected at all without registration.


Registering the name as a trade mark is a necessity in order to

  • oppose the use of identical or confusingly similar trade marks;
  • avoid that others are free riding on the reputation of your trade mark and thus of your product;
  • avoid that others would register the same trade mark or a confusingly similar trade mark before you do, and would then oppose to the further use of your trade mark. In general, earlier trade mark use is legally irrelevant and will not constitute a proper defense.


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For more information about the patentability or copyright protection of software, please click here.

 

 

 

 


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