Software & IP

If you don't understand the differences between copyright, trademark, and patent, learn them. There are thousands of resources available to grow your understanding. The challenge is harnessing your understanding to protect your invention, especially if it's software.

Companies pay a lot to secure their trademarks. Patenting can be in the tens of thousands. Copyrighting is by far the least expensive. They each bring protection that's helpful yet limited in scope. For effective use, make legal protection an aspect of your businesses' strategy, not the crux of the strategy.

Copyrights help but are limited to fixed mediums, and software often changes in both code and appearance. They're good if you don't want someone stealing your exact code, line for line. If copyrighting is your preferred method you're best to constantly apply and re-apply for the ©.

Trademarks are most valuable for branding protection. If your software's brand is intrinsic to its commercial value, which isn't always the case with small businesses, trademarking's a must. If people buy you because of your name and marketing, trademark!

In software, the Supreme Court decision titled Alice vs. CLS Bank poses a huge challenge. Alice means is if your software hinges on an algorithm or making it easier for people to order items or receive services, you likely won't be granted a patent. Supreme Court decisions can be fickle, but no one knows when and if this one's going to change. However, if your software poses a real-world utility, besides adding to human comfort, you may be able to patent. Due to Alice, even an Edison of software can apply for but won't receive a patent unless it is a true, novel, real-world utility.

You may know the trope of the inventor running to the patent office - Edison, in his brown suit with his stern face, scrambling through papers that aren't paperclipped as a teller rubber stamps as fast as she can. Today it's less running to the office and more calling lawyers and applying online. We just wanted to share the image.

If the Alice decision reverses, software companies would still have the burden to prove patentable criteria - valid subject matter, novelty, inventive/non-obvious, and useful - but that's with anything. If your software is already useful and new and non-obvious, you may be able to patent today.

The nuance and likely the reason for the Alice decision is the difference between graspable products which people touched and understood simply while software is only accessible but not traditionally tangible. A new hardware to capture your voice is patentable. It is wires and gadgets that can be manufactured by machines and compared by hand. But the software that interacts with the voice hardware and you through your phone may not be patentable; the Justices who decided can't hold your invention in their hands and empathize with its novelty - it's a marketing issue.

People who have very little to do with business often caution folks against having their idea stolen. It's likely their fears are residual from movies and disconnect with business. Just or not, all we can do to protect software is to be fearless and bold in our creations and to sell, sell, sell. Besides, if your idea is truly proprietary and difficult to create, it's likely that your idea won't be "stolen".  Ideas are taken by the greedy with superior resources and we don't think saying be fearless and bold is all too helpful. Edison ran to the patent office because other inventors stole his inventions and he stole theirs'. There is risk. But fearing someone stealing an idea is a green way of thinking. The creative inventor or entrepreneur can always create a new way while the thief will always await their scraps.

Alice may be wrong. Imagine a ladder that can never fall over. The ladder is utility patent eligible. But a software which calculates the exact angle to place ladder so it won't fall may not be patentable. Telling the existing ladder how not to fall is just as valuable as building a ladder that can't fall. Telling the ladder exactly how not to fall is new, inventive, useful, and arguably a valid thing to be patented yet it's ambiguous.

In 2014, when Alice was delivered, Americans were already crazed by software. Non-natives still fear software and it's likely their fear dictates their decision. We think it's fair to say when the fears subside, Alice changes, as it should.

In the meantime, we all want to protect ourselves and our products. Best practice dictates you update and upgrade, innovate, and make conscious efforts to not steal from anyone as a matter of integrity and as a way to differentiate yourself. Try to a patent if and only if it's an aspect of your strategy. If you're different enough and good enough, you're your own protection.





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