Protecting Your Intellectual Property: Patents, Trademarks and Copyrights

Introduction

For software developers and technology companies, intellectual property is critical for maintaining competitive advantage and realizing value. Legally protecting IP prevents others from copying and misusing your inventions and creations.

This comprehensive guide explores mechanisms for protecting intellectual property through patents, trademarks and copyrights. Learn how to:

• Identify which aspects of your software are patentable
• File provisional and utility patents with optimal claims
• Conduct trademark searches and register names and logos
• Establish copyrights on code, interfaces and content
• Include IP protections in license agreements and contracts
• Enforce IP rights against infringers through litigation
• Defend against patent trolls that exploit the system
• Manage international IP protections across regions

Follow these best practices to fully cover your innovations through water-tight IP rights and maximize returns on R&D investments. Let’s dive in!

Software Inventions Eligible for Patents

Unlike copyright which applies automatically, patents require filing to protect inventions including:

• Algorithms
• Data processing techniques
• New frameworks and architectures
• Innovative interfaces like gestures
• Computer hardware advances
• Software based methods in any industry like business, science etc.
• Automated processes driven by software
• Computer security encryption and coding techniques

Document thoroughly to prove date of conception.

Parts of a Software Patent

Software patents contain these sections:

• Background – Explain the technology context, problem addressed and prior solutions. Identifies how your invention is novel compared to predecessors.
• Summary – Concise overview of how your invention works and the concrete benefits provided.
• Drawings – Visual diagrams and illustrations depicting the invention’s functionality, data structures, architecture etc.
• Detailed Description – In-depth technological explanation of exactly how your invention works. Algorithms, logic flows, code samples etc.
• Claims – The legal aspect listing the specific proprietary elements protected by the patent. Multiple claims can be included from narrow to broad.

Filing a Provisional Patent Application

Provisional applications establish an early filing date while allowing time to finalize full “utility” patents later:

• Cheaper, faster and simpler process than utility patent
• Does not require formal patent claims
• Lasts for 12 months
• Gives you priority date as official inventor if utility patent filed within 12 months
• Not examined like utility patents – converted to utility patent to be enforced
• Can be filed without attorney though advisable to consult one

Provisionals let you quickly protect an invention while refining implementation.

Crafting Effective Patent Claims

The claims define protections and require meticulous wording:

• Focus claims on the novel aspects or combination of elements rather than known steps
• Seek to encompass the broadest allowable scope of protection
• Include both independent claims covering the key advance plus dependent claims covering specific embodiments
• Use clear and consistent terminology aligned with patent specifications
• Avoid terms with alternative interpretations or scope ambiguity
• Include supporting details referenced from drawings and specification descriptions
• Work closely with patent counsel to wordsmith claims for maximum defensibility

Conducting a Patent Search

Research existing patents thoroughly so your claims are demonstrably unique:

• Search USPTO database plus Google Patents for related public filings
• Look for competing patents assigned to key players in your space
• Search by classifications and codes relevant to your software domain
• Consult resources like Derwent, TotalPatent One and PatSeer for deep research
• Search patent databases globally not just the US since most publishing is country specific
• Engage experienced patent search professionals for comprehensive coverage
• Document prior art references uncovered that inform your claims

Aim to demonstrate clear innovation beyond existing patented techniques and systems.

Navigating the Patent Approval Process

Interacting with patent examiners smoothly improves odds of approval:

• Respond to initial feedback thoroughly explaining how your invention differs from and advances prior art
• Get examiner suggestions on tweaking claims and definitions for allowability rather than rigidly defending original application
• A skilled patent attorney can reword claims favorably while still protecting your invention
• Be persistent through potential multi-round back and forth with examiner rebuttals to overcome rejections
• If finally rejected, appeal to the Patent Trial and Appeal Board (PTAB) for reassessment
• Allow 1-2 years for full application processing though expedited options available

International Software Patent Filing

Given software’s global reach, protect intellectually property across key markets:

Direct National Filings

File individually country by country. Most expensive and time consuming.

International (PCT) Application

File under the Patent Cooperation Treaty for broad international rights. Must enter national phase within 30 months.

Paris Convention Priority

File subsequent patents in other countries within 1 year while retaining original priority date.

Patent Prosecution Highway (PPH)

Leverage patentability in one country to fast track others through patent office partnerships.

Regional Systems

File for protection across multiple countries through systems like European Patent Organisation (EPO).

Registering Trademarks

Protect names and logos that represent your brand identity through trademark registration:

Product and Service Names

Register official names of software, apps, and services to prevent copying.

Company and Product Logos

Logos and stylized names visually identify your brand’s offerings.

Slogans and Taglines

Short catchphrases that encapsulate your positioning require protection.

Sounds and Sensory Branding

Unique sounds associated with your brand like interface audio cues qualify.

Trade Dress

The distinct visual styling, color schemes, and designs that make your brand recognizable.

Conducting Trademark Searches

Confirm proposed marks don’t infringe existing names and logos:

• Search USPTO index of registered and pending marks.
• Screen unregistered common law marks through Google searches.
• Search variations like domain extensions, spelling errors, and foreign translations.
• Keyword variations related to your industry like substituting “Go” for “App”.
• Consider degree of similarity based on sight, sound and meaning that could cause confusion.
• Descriptive and generic terms face barriers to registration.
• Retaining counsel provides an objective assessment on risks.

Registering and Maintaining Trademarks

The USPTO handles reviewing and granting federal trademark rights:

• File application with USPTO identifying class of goods and services covered.
• Provide date of first commercial use in commerce.
• Respond thoroughly to any concerns raised by trademark examiner.
• If approved, registration lasts 10 years and is renewable indefinitely as long as continually used in business.
• Register marks in foreign countries individually following domestic approval.

Consistently use symbols like ® or TM to notify rights.

Software Copyright Protection

Copyright arises automatically but registration enhances enforcement rights:

Code and Binaries

Full source code, scripts, executables and object code are copyrightable.

Graphical Interfaces

Creative interface designs, layouts, displays fall under copyright.

Documentation

Supporting documents like manuals are protected creative works.

Functional vs Non-Functional

Functional elements like protocols and programming languages are not protected but non-functional creative code organization and comments are.

Deposit Requirements

Provide limited code excerpts and descriptions vs entire codebases for registration.

Infringement Lawsuits

Registration required before suing for infringement. Statutory damages and attorney fees possible for registered works.

Software IP Protection through Contracts

Augment patents, trademarks and copyrights through binding agreements:

Non-Disclosure Agreements

Require partners and employees to keep proprietary information confidential.

IP Assignment Contracts

Ensure employees assign over rights to IP created that is related to business activities.

Licensing Contracts

Clearly specify restricted usage terms and protections for source code, APIs, SDKs etc.

Non-Competes/Non-Solicitation Agreements

Limit former employee ability to compete directly or solicit talent post-employment. Enforceability varies.

Cybersecurity Policies

Establish policies for securely handling confidential data like source code. Report lost devices.

Enforcing Software IP Against Infringers

Actively police violations and imitation to protect value:

Cease and Desist Letters

Issue formal warnings to halt unauthorized activities and avoid litigation.

DMCA Takedown Notices

Request infringing material removal by online publishers, search engines etc under safe harbor laws.

Litigation

Directly sue infringing organizations for monetary damages, injunctive relief, and attorney fees if valid registration.

PTAB Disputes

Challenge validity of competitors’ patents you believe were improperly granted through post-grant reviews.

Inter Partes Reviews

Petition Patent Trial and Appeal Board to reconsider patentability of competitor claims if strong prior art.

Customs and Border Control

Block infringing product imports at international borders through agency seizure and detainment.

Defending Against Patent Trolls

Patent trolls exploit the system to extort companies. Tactics to fight back:

• Challenge validity through USPTO post grant and reexamination proceedings
• Proactively invalidate poor quality patents through industry groups like Unified Patents
• File for declaratory judgements in plaintiff-friendly courts to take control
• Attempt to restrict venue through technical jurisdictional challenges
• Argue against injunctions that would cause disproportionate business disruption
• Fight aggressively on merits to set precedent and deter future suits
• Collaborate across targets through joint defense groups and letter campaigns

Though disruptive, most trolls pursue quick settlements. A strong legal response can help curb future shakedown efforts.

Conclusion

Intellectual property protection enables software innovators to reap the rewards of creativity. Patents, trademarks and copyrights prevent imitation while trade secrets maintain confidentiality. Navigating the IP landscape requires thoroughness and persistence. But the long-term payoff from insulating your IP against infringement is well worth the investment and enables sustained competitive differentiation.