How can software be protected as intellectual property?

Posted onDecember 20, 2022

You should already be aware that your intellectual property is incredibly valuable, regardless of what it relates to. Most types of technology can be protected via intellectual property rights in some way, with software being no different.

Due to the importance and respective value that software can hold, both for individuals and businesses, it is important that you understand what your software intellectual property rights are and what you can do to protect them.

In this post, we will be discussing those matters, as well as the steps you can take if your software intellectual property rights are infringed and how our solicitors at Saunders Law will be able to help you.

What is classed as software?

When we talk about ‘software’, we are referring to sets of instructions, data or programs which are used to operate devices and execute specific tasks. It is a generic term which is frequently used to refer to applications and scripts that run on a device. Types of software often include programming software, middleware and driver software.

What is intellectual property?

Intellectual property refers to anything that is created by your own mind. While what classes as intellectual property can vary significantly, typical examples will include products (both physical and digital), inventions, ideas, creative expressions and registered trade marks.

The ownership of intellectual property centres around three essential points. You will be considered to own a piece of intellectual property if you:

Have created it and it meets the requirements for a copyright, a patent or a design
Have bought intellectual property rights from the original creator or previous owner
Have a brand that could be a trade mark

It should be noted that intellectual property can be owned by more than one party and can be sold or transferred when required.

What are intellectual property rights?

As the owner of a piece of intellectual property, you will have a certain level of protection in place to prevent others from copying or stealing your work. You obtain certain types of protection automatically, while an application needs to be made for others.

Your intellectual property rights will have been infringed upon if anything protected by intellectual property laws is stolen or otherwise used without the proper authorisation or permission.

Why is software regarded as intellectual property

It should come as no surprise to learn that software forms an important part of any business. In some instances, businesses centre entirely on the software they build and sell, demonstrating how important it is to have various safeguarding measures in place. Just like anything else you or your business may create, software is a creative idea or process that focuses on solving a problem – meaning it is a form of intellectual property.

As a large number of businesses and individuals depend on a type of software for a variety of purposes, having protections in place to ward off duplication or theft is critical.

How to protect the intellectual property of software

There are a number of ways in which you can protect software intellectual property. These include exploring options such as:

Patents
Trade marks
Registered design rights
Copyright

Patents

Patents serve to protect the technical ideas that underpin the way a particular piece of software works. They can be used if you intend to take legal action against an individual or business who uses your software without your permission.

You should be aware that, to patent a piece of software, it must be considered to be new (it cannot have been made publicly available anywhere in the world). It must also be inventive (it cannot simply be an obvious change to something that already exists). For an application to be accepted for a piece of software, it must be demonstrated that it can help overcome a technical problem that goes above and beyond the normal execution of code.

UK patents last for five years, after which they must be renewed every year up to a maximum of 20 years.

Trade marks

Trade marks may not protect the technical contents of the software itself, but they can be used to protect your wider brand. With regards to software, they could be used to protect aspects such as the words or logo used.

Trade marks last for ten years. Once this period expires, they need to be renewed.

Registered design rights

As with trade marks, the technical aspects of software cannot be protected by registered design rights. However, design rights can be used to protect the way something looks so, in this context, they could be used in relation to screen displays and graphics.

Design registrations last for five years and must be renewed up to a maximum of 25 years.

Copyright

Copyright is automatic. By this, we mean that, as soon as you create anything that falls under the bracket of original literary, dramatic, musical and artistic work, it is created by copyright without you having to do anything.

Source code is protected as a form of ‘literary work’. Just the code itself will be protected, not the ideas which are contained within it.

What happens if your software is infringed?

If your intellectual property on software is infringed, you may understandably be concerned about what might happen next and what your options are moving forwards.

As the owner of intellectual property for software, you will typically be able to pursue a range of enforcement options. These include:

Claiming damages for losses caused by the infringement
Putting freezing orders in place
Seeking an injunction

You should also be aware that, prior to starting formal legal proceedings using any of these methods, you will also have the opportunity to settle a potential dispute outside of court via a course of negotiation. If this is not possible, the next step would be to file legal proceedings through the courts.

Should you speak to a solicitor about intellectual property for software?

If you, or your business, have created an original piece of software and need to clarify your intellectual property rights, it is critical that you instruct the right legal counsel with specialist expertise in handling these matters. This includes a situation where you find yourself involved in an intellectual property dispute concerning your software.

When instructed, a specialist intellectual property solicitor can advise you on your general rights and options for securing your software, as well as your rights for making a claim with the most appropriate solutions for doing so. No two cases are ever the same when it comes to these types of matters, including those that relate to software intellectual property law. Due to this, a tailored approach is required to find a positive resolution.

Working with a solicitor when your software intellectual property rights have been infringed will also increase your chances of reaching an out of court resolution, which can help to save time, money and stress on your behalf.

Equally, where court proceedings are required to protect your software intellectual property, having the support of an intellectual property solicitor will help to ensure your interests are robustly defended.

How our solicitors can help you protect software intellectual property

At Saunders Law, our partner-led team have over 40 years of experience, which we put to use in supporting our clients with a wide range of intellectual property matters. We have developed an excellent track record of successfully protecting our client’s interests and have been independently recognised with strong rankings in highly respect client guides the Legal 500 and Chambers & Partners.

Our previous experience with intellectual property matters includes supporting clients in protecting their commercial assets, advising companies in advertising, technology and media, and blockchain and cryptocurrency.

Speak to our intellectual property solicitors today

Whether you are seeking to enforce your intellectual property rights, or simply need advice on software intellectual property law, it is essential that legal advice is obtained from specialists in this area at the earliest opportunity.

At Saunders Law, we will always offer a free initial consultation to establish if we can assist you.

Our advice is clear, simple and designed specifically to meet your needs. We are discrete and familiar with dealing with high profile individuals and cases.

You can rest assured that our team will tirelessly fight your corner, ensuring that the best result possible is achieved for you.

Call us on 020 7315 4801 or make an enquiry online.