What is Protected and How?

Intellectual property rights do not protect ideas. It protects the embodiment of ideas in their expressed, recorded or implemented form. For computer software this means copyright protects source code in the way that it appears on a hardcopy, and in its compiled forms. Intellectual property rights do not protect ideas unless they 1. are confidential and 2. remain confidential. Confidential information will protect information in all its forms, spoken, written or recorded by some other means.

As copyright is qualified monopoly – it does not protect all works for all purposes – copyright will not protect algorithms used and mathematical calculations used in source code. The rationale for this is that a copyright owner does not own the facts or ideas expressed in the work, only the particular way they are expressed, or written down.

Intellectual property rights are protected by contract with users. These will be familiar, as in the industry they are referred to as software licenses. Licenses of intellectual property rights is incredibly flexible, and in essence they are simply permissions to use software subject conditions. The conditions for the use of software rely on the context of the license. In commercial software licenses, the license will be granted in exchange for a payment of money, and may be limited in any number of ways. For instance the licensee may only be permitted to use one copy of the license, or the use of the license may be limited by the territory. The permission used in open source licensing is granted on condition of the principles espoused by the Free Software Foundation.

The best way to protect software is to only release copies of the software in an obfuscated compiled form.

Designs law protects the appearance of physical articles, however designs law in the UK has been extended to allow registered design protection for icons and other designs that appear on a computer screen.

Areas of Law Protecting Software

Copyright – copyright protects the skill and judgment invested in creating a work, and others may copy the functionality provided they do not copy the original program. In this way, copyright does not protect functionality in its own right.

It is trite to say that constantly developed software attracts perpetual copyright protection. Variations of source code may amount to ‘adaptations’ of the original namely variations of the source code in language and coding methodology.

There have been a line of cases where claimants have claimed that the look and feel of users interfaces displayed by software has been infringed. UK Court have are inclined to make a finding that copyright ahs been infringed when it occurs on an abstract level, as it would be unfair on the public, as there must be a degree of certainty of what will infringe and what will not. This reasoning pervades judgments involving other types of copyright works, such as the decision in the Da Vinci Case.

Lawful users of software are entitled to perform certain activities on third parties’ software. They may backup the software, both decompile and reverse engineer software for specific purposes (that is to study the ideas contained in the source code, or create other software that interfaces with the original software), and edit software for the purpose of correcting errors.

Patents – provided the software steers clear of the exclusions to patentability, patent law will protect the method that the software uses to perform the process. The protection lasts for 20 years. Protection is more easily obtained in the US, as business methods are patentable, whereas in the UK business methods are specifically excluded. The trade off with the expense involved is the marked strength of protection granted.

In order to obtain a patent for software, an invention must be new, inventive, have an industrial application and not fall into excluded subject matter. Excluded subject matter are scientific theories, mathematical methods, rules or scheme of performing a mental act, methods of doing business and the presentation of information and computer program.

Difficulties are experienced by applicants for software patents because software needs something extra: a technical effect. It is the technical effect produced by the software that is patentable, and not the software itself.

A technical effect or ‘contribution’ in the physical domain drags the invention out of the reach of the excluded subject matter. Some tangible end result is required that makes an advance: the effect does not have to be in the physical domain. It is the application that is performed by the software that is protected by patent law, and not computer programs themselves. The focus therefore is on the process performed by the software.

In Viacom, software processed images to produce better quality images. The technical effect in this case was the production of the images. It was not the program that was patented, but the process implemented by the program. This is also an instance of an algorithm being indirectly patentable. Algorithms of themselves are not patentable as they are mathematical methods and excluded by s 1(2) of the Patents Act. However a method that implements to the algorithm in a particular patented process patents that algorithm for the process.

As a matter of substance, of all that is being performed is one of the defined exclusions under section 1(2), then it is still unprotectable. The test relies therefore on what the invention does as opposed to the manner in which the invention accomplishes the task.

Patents have been obtained for software that processes images to produce better quality images; drawings of better curves on a computer screen; manufacturing control processes; and operating system monitoring software.

A demonstrative link between the computer program and the process in a physical domain was required rather than that of an electronic calculation dictated by the laws of physics and mathematics which controlled the machine in the physical world.

Computer programs, mathematical methods, discoveries, schemes, rules or methods for performing mental acts and methods for presentation of information are excluded from patentability to the extent that they do not have an impact in the real world. In effect for software, the computer program cannot be claimed on its own – there must be a ‘technical effect’. The program must facilitate some other process, rather than embody the process itself.

Designs – provides an indirect means to protect firmware and a direct means to protects icons.

Trade mark law and passing off – protects the name that is used to refer to the software in industry. Trade mark law is generally a more cost effective means of protecting the trade name.

Confidential Information – protects business and commercial information. Where source code or design materials have had their confidentiality maintained, they are protected.

Trade Secrets – computer software is generally considered to be trade secrets and thus ex-employees are unable to use the ideas. Trade secrets do not protect broad or general ideas. Trade Secrets can include secret formulae, names of customers and the services that they buy.

The way software works is usually considered a trade secret, which is an elevated form of confidential information.

Some of these intellectual property rights frequently overlap in the protection of computer software. For instance, the way proprietary software works to perform a task is likely to be considered trade secret, as well as being protected by copyright. If a patent has been obtained, copyright protection will be maintained in the source code and machine code derived from the source code, however once the patent has been published, the way the software works will lose its status as a trade secret to the extent that it is disclosed in the patent specification.

Ownership

In the absence of an agreement to the contrary, the first owner of the copyright in software is the person to made it, unless that person is employed, in which case the employer owns it. Freelance programmers and consultants therefore own the copyright in the code that they write unless special circumstances apply.

Licensing

A fundamental precept of intellectual property law is a licence. A licence is simply a permission to use some embodiment of intellectual property. Where use of software is not embodied within a licence it is an infringement. Depending upon the rights that have been acquired in the software, it may be an infringement of copyright, design rights or patent rights. The knowledge embodied in software may also amount to a trade secret, which is particularly sensitive confidential information.

Unlawful Use of Software and Infringement

Copyright is infringed when a person other than the copyright owner or their licensee performs one of the exclusive rights of the copyright owner or authorises another to do so. The exclusive rights are the rights to:

1. copy the work
2. distribute the work
3. rent or lend the work to the public
4. make an adaptation of the work
5. perform any of the foregoing exclusive rights in respect to an adaptation.

So, the copyright owner is entitled to stop anyone fro performing these restricted acts without their permission.

Infringement may take place by translating a two dimensional work to a three dimensional work – such as a drawing to a building; making a copy of a published page; and the copying may be incidental or transient, such as running a program – as the software is loaded (copied) into memory to be executed. Also, restructured, altered versions and translations of software also infringe. Communicating the software to public by broadcasting the work or making it available to the public (whether it is actually accessed or not) also infringe copyright. These two are the rights that catch copies emanating from Peer2Peer file sharing networks.

The entire work does not need to be copied to infringe. A ’substantial part’ of the software only needs to be copied. This a qualitative test rather than a quantitative test – it is the importance of the parts copied rather than the quantity copied. As stated earlier, infringement is avoided if the work is independently created. There is no innocence defence to copyright infringement – it is no excuse to say that one did not know that copyright was owned by someone else.

Secondary Infringement – this is infringement arising from dealing with infringing copies, and take place when a person sells, tries to sell or imports infringing copies. It also includes dealing with articles that are used to make infringing copies.

There is a public policy defence to copyright infringement, whereby a court will refuse to enforce copyright where ordering that an infringement would be contrary to the public interest, for instance in a claim for infringement of software that perpetrated a fraud, piracy or hacking.

Remedies

Search orders (previously referred to as Anton Pillar orders) are of particular note, in that copyright owners may obtain an order that entitles them to search and take copies of relevant materials, to avoid the circumstance that they may be readily destroyed a, thus defeating a claim to infringement.

An order for damages which takes the form of a monetary payment is the primary means for compensating infringement of copyright works. In English law, additional damages are also available where the infringing party obtains a benefit from the use of the infringing work or the infringer acted with disregard for the copyright owner’s rights. An injunction is usually available to prevent further infringements, in addition to orders for the delivery up of infringing materials.

Quick Tips

1. Rather than taking a chance on thinking that the law of confidence will protect information, enter into non-disclosure agreements that ensure that a contractual right exists to prevent non-disclosure. It also allows recovery of damages in the event of disclosure in addition to an injunction, which is not the case when the general law obligation of confidentiality is implied by law.
2. There is no formal ‘copyrighting’ process in English law. A common means to prove that a copyright work existed at the time a claimant says it does is by lodging the contents of the copyright work with an independent third party.
3. Be clear about the rights that are granted to licensees.

Leigh Ellis is a software solicitor and qualified software engineer, providing legal advice to technology businesses in the UK and worldwide. He advises on protection of computer software, technology law and IPRs from the United Kingdom. He has advised businesses in the United States, United Kingdom, China, France, Australia, Gibraltar, Russia and Switzerland.

Article Source: http://EzineArticles.com/?expert=L_Ellis

Trademark protection
For the name, logo, or graphic that identifies and distinguishes your line from others. You can and should use TM next to or in close proximity to your mark upon initial use. TM simply means that you claim a common law right to the mark, which by virtue of your use you have a right to claim.

Use of ® is strictly prohibited until your application is completely approved and your mark is registered at the United States Trademark Office. In fact, improper use of ® is illegal and can be punishable by law. In addition, improper use can adversely affect trademark rights and registerability of a mark.

NOTE: The trademark must be used consistently to identify the clothing line verses some short phrase, slogan and/or graphic printed on a garment or T-shirt for the purpose of making a statement. First step is to identify your mark, its goods or service description, and learn common mistakes in selecting a mark, see Trademark Information and Trademark Goods Services Description. Second step is to perform a Trademark Search, see Trademark Search Instructions on How to Perform a Search as part of the Inventor Start Kit.

Copyright
If you have a drawing or a pattern showing the design of your garment or a photograph of garment these can be the basis of a copyright application. As a reminder, you should always include a copyright notice on all copies of your work (garment design), fixed on paper or in an electronic form, such as © 200_ Full Name/Company Name. ALL RIGHTS RESERVED.

Note: If multiple authors are contributing to a work (garment) and a single person or entity desires to own the collective work then the parties must transfer their rights to the single person or entity via an assignment/work-made-for-hire agreement; otherwise, each contributor is owed a ratable share of the profits realized from use, license or sale of the work.

Design Patent
If your garment design is a new and non-obvious garment design (article of manufacture) it may qualify for protection under a design patent.

Moreover, a patent is a property right that gives the patent holder the right, for a limited time, to exclude others from making, using, offering to sell, selling, or importing into the United States the claimed invention in exchange for a full disclosure of the invention. In simplified terms, a patent is a way of protecting an invention (any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof).

Therefore, without a patent, anyone can legally make, use, sell or import your invention.

Note: Ideas are not patentable, but rather the knowledge of how to make and/or use the idea is patentable.

To be patentable the law specifies three primary patentability requirements wherein the subject matter of the invention must be:
• Useful – To have utility as in an invention must be capable of some beneficial use.
• Novel – The invention must be new (different from the prior art) and an invention is not new if it has been described in a printed publication, known or used by others, or has been in public use or for sale. If an invention is not new, then the invention is not patentable (i.e., anticipated by the prior art).
• Non-obvious If the differences between the invention sought to be patented and the prior art (what is known) would have been obvious to a person having ordinary skill in the art then the invention is obvious and not patentable.

Example: Obvious non-patentable subject matter includes the substitution of one color for another, or changes in size or obvious changes or improvements over the prior art.

However, various rules and practices have developed in order to fulfill the mandate of particularly pointing out and distinctly claiming the subject matter. In general, this means that the claims must define the invention which means the claimed subject matter. Thus, there must be sufficient detail that the patent examiner and subsequently the world of perspective infringers can understand what the claimed subject matter is.

A first rule is that omnibus or formal claims are not permitted in utility patents. For example claims which recite ‘my invention substantially as shown and described’ or ‘any and all features of novelty described’ are not permitted in the United States. These types of claims if allowed, would allow too much uncertainty as to the patent coverage. The inventor must define the patent coverage as precisely as circumstances permit.

The reason for demanding certainty in patent coverage is that the world of potential infringers should have a clear understanding of the patent coverage. If uncertainty were permitted in patent coverage, the world of potential infringers would have to guess the extent of the patent coverage that is covered by a particular patent. This is the basis for the duty to define the area to be covered by the patent claims as precisely as circumstances permit.

An analogy can be made with the description of the boundaries for a plot of land. The patent claim drafter must stakeout the precise boundaries of the claim in a manner that is similar to the description for the boundaries for a plot of land.

This concept is extremely useful for the potential infringers but may disadvantage the patentee because the true extent of the usefulness of the patent may not be evident until years in the future. The true extent may extend beyond the description found in the current specification and may not be captured by the literal boundaries that the patentee has set forth in his claims. This conflict is inherent between the potential infringers and the patentee.

Another statue which affects the permitted claim language is 35 USC section 101 which sets out four main categories or pigeonholes of technical subject matter for which utility patents can be granted. The statutory classes are process, machine, manufacture or composition of matter.

Such things as mathematical formulas, bookkeeping systems and articles formed in nature have been held to be unpatentable because they are not found to be within the classes set up by Congress.

A claim regardless how artfully drafted must define the invention in such a way that it fits into one of the statutory classes. A failure to fit into the statutory class may result in a failure of the claim to be patentable.

Ornamental designs and certain agricultural plants are separate statutory classes with different rules.

This does not mean that these things cannot be part of a patent application. These things can be combined with the permitted statutory classes. For example, a device could be controlled by a computer which executes a mathematical formula. The mathematical formula per se cannot be claimed as the patentee’s invention. However, the device which operates in accordance with the mathematical formula can be a proper object for claimed subject matter.

Copyright Law

When you publish a book, a website or a blog you automatically establish ownership of that content, whether you sign a contract or not. International copyright law can be extremely complicated, with many different clauses and conditions. However, the standard copyright for any publication is the life of the author plus fifty years. Once this time is over, the copyright of the publication could fall into the hands of any number of entities. Your copyright usually falls into the public domain, but you could have a special clause in your contract stipulating otherwise.

There are two different types of copyright that are generally established for a publication. The first is the copyright in the literary work itself, which has the duration of your life plus fifty years. The second is the copyright in the layout, format and distinct “feel” of the publication. According to copyright law the content remains your intellectual property for fifty years after that specific publication, so if your book sees a new edition a century after its first publication, you will still own this copyright.

One of the most daunting questions a small business owner faces when he or she decides to sell their business is “what do I have to sell?” Aside from the phone number, address, and equipment, the main asset that is marketable is goodwill in most cases. Yet the concept of goodwill is elusive, amorphous, and difficult to quantify and monetize.

How do you measure goodwill? How difficult would it be for another business to amass the goodwill your business has accrued in the marketplace from scratch? How quickly could they build their own good will especially after the impending vacuum your exit will inexorably create? Sure, accountants have artful methods of ginning up the numbers in support of your goodwill appraisal, yet all the silver tongue number crunching will still leave you uneasy and leave your prospective bidders unconvinced.

One surefire way of providing flesh, structure, and a skeleton to support your goodwill appraisal is the Intellectual Property portfolio of your business. In particular, if you assert to a prospective bidder for your business that your goodwill is worth $x, you may bolster your argument with a United States Patent and Trademark (USPTO) registration and/or a state registration of your Trademark. At least now your asserted appraisal of your goodwill has support in the form of a nice seal and ribbon which may release concerns your prospective purchaser may have regarding how they may be able to monetize your goodwill.

In addition, if you are in the manufacturing industry, a prospective bidder may feel more at ease if you can point to some patents you have on the products you make, or the proprietary methods and processes you use in order to conduct your business. Your prospective bidder may take comfort in the fact that he or she may be given some leverage to assert in the marketplace with patent protection.

Now, on the flip side it is true that a portfolio of patents, trademarks, and copyrights can get a bidder to sit up straight and get their eyebrows creasing may also be difficult to appraise and monetize in their own right. Not all patents, trademarks, and copyrights are enforceable or even valuable. Many patents are not worth the paper they are printed on. Many trademarks upon which there is a registration are actually enforceable due to their inherent weaknesses. As such, if you are in the position of purchasing a business with an Intellectual Property portfolio, you may want to enlist a Patent Attorney to take a look at what is underneath the hood and do some diagnostics on the true strength and value of the value of the Intellectual Property portfolio.

As such, business owners who desire to sell their business sometime in the distant future would be well advised to immediately start building up a strong Intellectual Property portfolio consisting of Patents, Trademark registrations with the USPTO and their Secretary of State, and Copyright registrations. And on the other side of the transaction, a business purchaser should be advised to enlist the services of an experienced Intellectual Property attorney to evaluate the strength of each Intellectual Property asset to arrive at a fair value of the business.

Take Action. Be proactive in implementing an Intellectual Property Strategy and identifying new innovations. Do not limit activities to current products and services – look for unmet needs in related markets and develop innovative ideas in those areas as well. These developments in related markets provide opportunities for product expansion as well as licensing to generate additional revenue. Also, look for ways to extend existing products or services by identifying future needs of the marketplace. Evaluate current trends in your market and brainstorm on how to meet future customer needs as those trends evolve.

Evaluate. Review all innovations to determine how they can support the company’s current and future goals. When a new innovation is identified, quickly perform an initial analysis to identify any potential deadlines regarding protection of that innovation. Certain types of intellectual property protection have strict filing deadlines and other requirements to preserve your rights.

Existing Assets. Evaluate your existing IP assets to determine whether they are consistent with your current business plan. As your company’s business objectives change, look for new ways to leverage your existing IP assets – through licensing, marketing and so forth. Take steps to ensure that all of your company’s existing innovations are identified and, if appropriate, properly protected. It may be difficult, or impossible, to fully leverage an IP asset if it is not protected.

Review your business goals today and begin developing an Intellectual Property Strategy that supports and enhances those goals.

1. Growth. If the company is growing, an IP strategy may include goals for protecting the unique aspects of existing products/services and creating new innovations to expand the company’s product or service offerings. To generate new revenue through licensing or joint ventures, use brainstorming sessions to create innovations that satisfy unmet needs in the marketplace. These brainstorming sessions can focus on extending current products/services or creating new products/services in a different market.

2. Identity. For companies that have established (or are currently establishing) an identity, an IP strategy may include goals related to protecting that identity and diligently watching for misuse of that identity. Corporate identity can be established through product names, corporate logos, advertising slogans and product packaging.

3. Valuation. If your company is seeking an IPO (Initial Public Offering), acquisition or related activity where company valuation is critical, protection of Intellectual Property assets can increase valuation. Many companies derive significant value from their IP protection and its ability to preserve a competitive edge in the marketplace.

4. Review. Review your Intellectual Property Strategy periodically to be sure it continues to support the current business objectives. As the company goals or direction changes, adjust the IP goals accordingly. If the company is entering a new market, evaluate existing IP assets and how they might apply to the new market. Also, evaluate opportunities to create innovations in that new market.

Define IP goals that further your business objectives. Adjust these goals as your business expands so that your Intellectual Property Strategy continues to support the goals of your company.

Many people mistakenly believe that innovations are limited to “high tech” companies or those with a large research and development group. However, most companies have IP assets, such as business procedures (both internal and external procedures), customer lists, company brand/identity, innovations developed by company employees and more.

Regardless of the industry or the size of your company, an Intellectual Property Strategy can strengthen your business. It’s never too early to start thinking about this strategy – early planning can accelerate business growth and reduce the risk of future problems.

1. Understand the Different Types of IP Assets. An important first step in developing an IP strategy is to understand the different types of IP assets and how they can strengthen business activities. Copyrights, trademarks, patents and trade secrets are several of the common types of IP assets. These assets have different levels of protection and varying procedures necessary to protect the asset.

2. Identify Types of IP Appropriate for your Business. A successful Intellectual Property Strategy considers the various types of intellectual property that are a logical “fit” for the company and the business objectives.

3. Define IP Goals. Define goals (both short-term and long-term) that support your business objectives. An IP Strategy can support business goals by increasing revenue, creating a competitive advantage, attracting capital investments and positioning the business as an “innovator”. The IP Strategy can also support extension of existing products/services, foster a “team environment” and increase valuation of the business.

4. Protect Confidential Information. Every business has confidential and proprietary information that requires proper management. Diligent use of a written Confidentiality/Proprietary Information Agreement is an important method of protecting confidential and proprietary information. This agreement is signed by everyone who has access to confidential/proprietary information, such as employees, contractors, vendors, advisors, investors, board members and prospective customers.

5. Educate and Encourage Innovation. Many businesses assume that innovative activities are limited to the research and development group or to personnel with advanced scientific degrees. Although these groups and individuals are important to an IP Strategy, every person in an organization is a potential innovator. Innovations often solve problems or improve an existing product or service. Everyone is capable of identifying solutions, even if developing the solution is not part of their job function.

6. Manage All Innovations. Identifying innovation is a critical step in creating and leveraging intellectual property assets. Implement an innovation disclosure program that allows all personnel to easily prepare and submit descriptions of their innovations. Once submitted, a tracking system monitors the status of every innovation disclosure. This tracking system should identify deadlines, upcoming public disclosures and other activities related to the innovation.

7. Take Action. Be proactive in implementing an IP Strategy and identifying new innovations. Do not limit activities to current products and services – look for unmet needs in related markets and create intellectual property in those areas.

Identifying, developing and leveraging IP assets takes time. Review your business goals today and begin developing an IP Strategy that supports and enhances those goals.

In some cases it can be a little confusing because when you are talking about intellectual property it can be an intangible item. When you’re talking about regular property something that you can see and touch it is easier to understand how you can legally own that property. It can also be difficult to value the assets of this type of property because in many cases it can very from brand to brand. As with a house for instance you can get the value of that type of property because there are other similar houses in the area that have sold for a set amount of money.

Remember when you are talking about Intellectual-property rights it allows you to legally own a copyright, patent or trademark. This means if you create something or file for a patent you are safe from somebody stealing your idea and making a profit from it. It is always best if you have a legal issue that you find a good intellectual property rights attorney that can help you out.