Protecting Your Innovation in Software Products: Knowing Intellectual Property Rights


Software, whether system or application software, is any set of instructions, data, or programs used to solve a problem, implement logic, and/or operate physical components of the computer or other hardware to accomplish specific tasks. Compared to other technical fields, software has been and appears to continue with enormous amounts of innovation and improvement that are changing the future of product development and providing effective practical solutions for ever-changing requirements in all areas of life. Innovation is the main driver of the software industry, unlike other technologies, logistics, raw material costs, purchasing, etc. are negligible or secondary to the requirement for innovation and efficiency.

Software companies/entities face stiff competition due to low production costs and vulnerability of easy replacement. To top it off, challenged by genuine competition, there are serious issues like piracy and unauthorized duplication of innovative software. Such piracy or unauthorized use is difficult to trace back to the original infringer and difficult to prosecute compared to unauthorized duplication of other real-world tangible products.

Therefore, it would not be wrong to say that the awareness and protection of intellectual property in software must be immaculate to maintain exclusivity and even survive in the software market. Intellectual property rights in the software industry secure the economic interests of the owner, giving software publishers the much-needed impetus to continue innovating and finding innovative solutions or exclusive services.

Software patent protection: requirements for software patentability include novelty, inventive step, industrial applicability and, among others, overriding Section 3(k) of the Patents Act 1970, which states that mathematical methods, business methods, computer programs per se and algorithms are not inventions within the meaning of the Act, therefore software per se is not patentable subject matter. Therefore, to have a patent on software or a computer-related invention, the applicant must demonstrate that this software or computer program presenting a technical advance in solving a problem is activated using hardware components. A simple software application or a simple computer program/code or algorithm would not find patent protection.

Software copyright protection: the recognized intellectual property rights on simple software or computer codes are governed by copyright laws. A copyright is acquired by way of creation and does not necessarily require registration. However, the copyright registration certificate is certainly a better case for an interim injunction and tips the balance of disadvantage in favor of the plaintiff sued for infringement. According to the recent modification of copyright rules, for registering computer programs or codes as copyrights, at least the first 10 pages and the last 10 pages of the source code, that is- i.e. a human-readable form, or the entire source code if less than 20 pages, without blocking or redacting any part shall be made available by the applicant. Thus, by the 2021 amendment, compliance requirements for software registration have been reduced, as it was previously necessary to submit all “source and object code”. The 2021 amendment ensures that confidential information contained in the source code of the computer program is not compromised in any way.

Protection of software trade secrets: Another option often used by companies to have exclusivity over a single software product is to keep the source code or critical parts of it as a closely guarded secret. The best examples of trade secrets are Coca-Cola’s recipe formula and Google’s search algorithm. The strength or exclusivity of the trade secret is only as good as the means and efforts of the owning company to keep it confidential. Several software publishers keep the source codes of their flagship software or applications confidential and some of the promoters or only the founders are in possession of the base file or the source code. This protection lasts as long as the protected element retains its trade secret status. Unlike patents or copyrights, the protection of trade secrets has the enormous disadvantage of not having a status dedicated to protections. The protection of trade secrets is generally covered by contract law, and the unauthorized disclosure of trade secrets is sanctioned by allegations of breach of trust and unfair trade practices. Trade secrets are not susceptible to infringement like patents and copyrights, but are subject to theft. The moment a trade secret is revealed or if another party stumbles upon the magic formula or innovative code or reverse-engineers the application to reach the PIN, the owner cannot prevent that other party from using that coded. Whereas for a patent or copyright, even if the other party knows the formula or code, he cannot use it without the consent of the owner of that patent or copyright.



The opinions expressed above are those of the author.



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