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Many business derive a great deal, perhaps most, of their revenues and profits from software and/or eCommerce and Internet methods of doing business. Software and software enabled business methods may be highly inventive, but can be easily copied if they are not properly protected.

Frequently Asked Questions

Can software and computer enabled business methods be legally protected?

Generally yes, at least to some extent.

Software-based inventions are best protected using a combination of patent (if applicable), copyright, trademark and trade secret protection. No single methodology alone can provide comprehensive protection for all aspects of software and software-enabled business methods.

Isn't computer software unpatentable?

Software code, per se, is not patentable. However, the concepts and methods of operation that un-derlie the code may be.

Software-related patents are extremely controversial in some circles. There is an open debate as to whether such patents are anti-competitive and if they should be allowed at all.

The recent decision by the Supreme Court in Alice v. CLS Bank casts significant doubt that any in-formation processing method implemented on general purpose computers (the bulk of eCommerce related patents) can be patented at all. Old, well established patents on such inventions are falling in courts all over the country weekly. The law is evolving in this area and bears close attention.

Can computer software be copyrighted?

Yes, although copyrights on software code may be what is referred to as “thin”.

Such copyrights cannot protect the ideas underlying the software code, but can protect the literal text and, to an extent, the structure and organization of the code.

This type of protection is effective to protect software code from literal, verbatim copying.

What other types of protection are available for computer software?

If software is not available to the general public in original, source code format, the code can be protected as a trade secret.

To be protected as a trade secret, the code for software must be physically sequestered in a manner that makes it accessible on a “need-to-know” basis.

Additionally, employees should be under at least some contractual obligation to refrain from copying their employers software and from competing with their employer.

I want to offer my software as open source, why do I need to worry about protecting it?

Maybe you don't, although if you want to insure your source is not used in a manner you object to, for example, in proprietary software with no credit to you, you may still wish to protect it.

Retaining rights to software doesn't mean you will always use it for profit. You may wish, for example, to insure it remains available to the general public.


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