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Can We Use IP to Protect Software?

A key question that confronts participants in any disruptive and innovative industry is that of intellectual property (IP) protection. Software is no exception. Multiple IP routes, e.g., copyrights, patents, and trade secrets, are available for protecting software, but the appropriate choice is not always automatically evident. Therefore, a careful assessment is required to determine the kind of protection that is best suited to the assorted elements of software or maybe a combination of all.

Protecting Software with Copyright

A copyright grants you very specific rights in terms of your software. When you hold the copyright to software code, you can:

  • Make copies of your software code
  • Sell or give away the code
  • Make a “derivative work,” which is a second software that uses a lot of the original code

In particular, Section 2(o) of the Copyright Act, 1957, defines “literary work” as including “computer programmes, tables and compilations including computer databases”. Under copyright law, protection is available only to the form or expression of an idea and not to the idea itself. 

The object of copyright protection in a computer program is not the underlying idea, but the computer language used to express that idea. So, the copyright of computer programs prohibits copying of program structure and design. 

Protecting Software with Patents

To protect a process, like the function of software, you need a patent. A patent will protect things like:

  • Systems
  • Functions
  • Solutions to computer problems

In India, the process of seeking patent protection for software requires navigating legislative interpretation around the protectability of software as an invention. Section 3 of the Indian Patents Act, 1970, contains a list of what the legislature considers to be “not inventions” under the scheme of the law and thus, not patentable. Section 3(k), in particular, states that a mathematical or business method or a computer programme per se or algorithms, cannot be inventions.

The phrase ‘per se’ in Section 3(k), which was inserted by the Patents (Amendment) Act, 2002, allows certain, although not all, computer programmes and software to be patentable inventions. Various court decisions have shed light on this aspect of patentability of software, such as Ferid Allani v. Union of India & Ors. [2019] and Telefonaktiebolaget LM Ericsson Vs Intex Technologies [2015] .

Protecting Software with Trade Secrets

A trade secret is information you or your company has that other people don’t have. You use this information in business, and it gives you a leg-up over your competition.

You don’t file any documents or apply with an office to get a trade secret. Instead, the way you treat your software can make it a trade secret. You have to take “reasonable measures” to keep the software a secret:

  • Keep the software away from the public.
  • Have employees sign non-disclosure agreements.
  • Have employees sign non-compete agreements.
  • As soon as an employee quits or is fired, take away all their file and data access.

Sometimes companies and individuals don’t see trade secrets as secure enough protection for valuable software inventions. 

There is no statutory protection afforded to trade secrets in India; in other words, no code or legislation around trade secrets exists. As a result, trade secrets are usually protected and enforced through contractual arrangements. 

What is the Best Way to Protect IP in software?

Given that patent protection and copyright protection are not incompatible, it is a good idea to make use of both modalities and thus benefit from the advantages that each one provides.

The same happens with the implementation of a trade secret protection plan. Combining all the instruments is key to achieving maximum exclusivity over use of the invention and preventing third parties from economically, commercially or strategically benefiting from the effort that has been made.

All business value in a company starts out as a secretThus, a good basis for protection in all business activities should begin with the implementation of a trade secret protection plan.

The know-how must always be disclosed under control. The development and commercialization of software involves a disclosure whose scope depends on the specific way in which software is made available to the market.

When the software involves a technical solution to a technical problem, the patent system is then a form of controlled disclosure that allows it to be protected since it is considered a computer-implemented invention. 

Copyright protection also can work with patent protection to provide a unique continuum of intellectual property protection in the software environment. Copyright protects against literal copying and against slavish imitation of code or mode of expression. Patent protects against infringing use, whether through derivation or independent development, of the broader functional aspects of software. Thus the combination of available copyright and patent protection would appear to make software the most protectable of all technology.

Conclusion

Whichever way you choose, the implementation of a trade secret protection plan requires, as a reasonable measure, that the evolution of the developed software be registered by certifying authorities.

Therefore, protecting software requires constant monitoring and a combination of the different instruments so as not to lose the exclusivity and benefits conferred by industrial and intellectual property rights.

AuthorRadhika Verma, Legal Intern at PA Legal.

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