If software were an animal, it would be a platypus. It partakes of several different types of IP, but doesn’t wholly belong to any single type. Software might implicate one or more forms of IP:
PATENT: Assuming the software performs a function that is novel, non-obvious and useful, and the developer didn’t wait too long to apply, software can and often is subject to one or more patents. Patents are certainly the most powerful form of IP protection, but their relatively high expense, tough entrance requirements and long, fraught application process make them somewhat uncommon.
COPYRIGHT: Perhaps software’s most natural habitat (to mix a metaphor), copyright covers the original expression in the code—both human-readable and machine-readable—but it does not cover its functionality or elements in the public domain. For more on the difficult task of extricating expression from functionality, see this multi-part blog post.
TRADE SECRET: Trade secret can protect all manner of different things, so long as it’s not perceptible to the public, including the user. Thus, you probably can’t protect the software’s functionality this way, because the user can see the functionality. But “under the hood,” you can protect clever ways your software achieves the functionality. The trick is making sure that no one can look “under the hood” (i.e., get access to the source code), which can be difficult or even legally impermissible (if you integrated certain forms of open source software).
In addition, the software’s graphic user interface might have some trade-dress or copyright protection.
If you’re in a dispute, then you’re potentially looking at a lawsuit or possibly private arbitration, which not an entirely pleasant prospect. Take a look here for our litigation primer for more. As you might imagine, software’s protean nature increases the complexity (and thus the cost) of software-related litigation.
Software-related litigation can be simplified and possibly avoided by taking care of certain problems on the front end with carefully drafted licenses and thought-through development procedures. For example, who should end up owning the copyright in the software, the developer or the customer? If the customer, should the developer have some rights, perhaps necessitating a “license-back”?
Aaron | Sanders PLLC can help make the litigation process more transparent, and in some cases, help you avoid it altogether. Contact us to see what your litigation options are.