Software can be protected through several overlapping forms of intellectual property, and the right strategy depends on what the business actually needs to protect.
Copyright generally protects the original expression embodied in source code and other copyrightable software materials. It does not give the owner exclusive rights over an abstract idea, algorithm, method or functional concept merely because that concept appears in the code. Registration is particularly important because, for U.S. works, a civil infringement action generally cannot be instituted until registration or preregistration requirements are satisfied. Timely registration can preserve eligibility for statutory damages and attorney’s fees.
Patent protection can cover eligible software-related inventions when the claimed subject matter satisfies patent-eligibility, novelty, non-obviousness and disclosure requirements. The patent protects the claimed invention, not simply the source code as such.
Trade-secret protection can also be strategically valuable for source code, algorithms, datasets and technical know-how if the information has economic value because it is secret and the owner takes reasonable measures to keep it secret. That requires more than an NDA: access controls, cybersecurity, employee/contractor agreements and internal procedures should work together.
For most software businesses, the strongest strategy is not patent or copyright, but a coordinated combination of copyright, patent, trademark and trade-secret protection.
For a software company, choosing only one form of protection can leave valuable rights exposed. We can help you determine what should be patented, copyrighted, trademarked, or maintained as a trade secret, and structure those protections around the way your software actually generates revenue.