Software can be very valuable intellectual property (IP). There have always been discussions about whether or not it is possible to patent software or not. This issue is connected to question of „What are the possibilities of software legal protection?“ The concrete answers depends on pertinent country law. However, we will discuss the general options you, as software developer, have to protect your software in majority of countries of the world.
Short answer is Yes, the software can be patented. However, certain conditions must be met for software to be patentable. The main condition is, that this software provides technical solution to technical problem/s. For instance, software helps to make faster communication between motherboard and RAM or software makes your radio turns on when your house door opens. This connection to technical solution must be present. So in general, the software as such can not be patented, but in some cases it can be patented.
Should I patent software?
Is it suitable option for you – to patent your software? According to our experience, in many cases it is not a best solution, however, we can not generalize this answer. There are certain situations where patenting might be the best way to protect your software. For example, if the solution software provides has a huge potential both on innovation level and on commercialization level. If this solution is a breakthrough then there is a good chance that patenting it would be viable option.
However, if your software does bring only a little or negligible amount of innovation into existing and publicly available technical solutions, then you should focus on protecting your software differently.
We must also point out that patenting can be very financialy challenging options and especially for startups. The final prices depend mostly on your country and the territorial scope of your desired protection but it can go from 1000 EUR to 100.000 EUR and more. You must also take into account that patent must be maintained and the maintenance fees must be paid regularly if you wish to remain your patent valid.
The innovation or solution that software brings can be indirectly protected by trademark. Basic strategy is that you give a software a name, register it as trademark, publish it and market it. You do not need to publish the whole software or make the code available to everyone, you just need to make sure the relevant public recognize that this is the software bringing solution to something and this software and its name is connected to you – or your company. This is the solution that trademark can offer you. The code itself will remain protected by copyright.
Trademark is in most cases quite cheap solution, but again, it depends on your country and other factors what the final price of obtaining trademark be. It can go from 100 EUR to 20.000 EUR and more.
There is an international level of copyright protection that can grant your software automatic copyright protection. Most countries adopted these into their legal systems and so you can enforce your rights to your software on copyright level. In order to have your copyright protected on best level, be sure to have a good confidentiality agreements with your employees and business partners who have access to your software and all know-how behind it.
Also, if you are willing to give your copyright an extra protection, there are various ways of doing so. One of them is traditional copyright registration which is available in several countries such as UK or USA. Another way, cheaper and also very effective is using WIPO Proof system, which is trusted digital evidence system provided by World Intellectual Property Organization. This system can help you prove existence of certain digital file in specific point in time. Depending on number of files you are willing to protect the price starts at approximately 20 EUR for one file.