You’ve spent thousands of hours developing a new software program. Now how do you ensure that your competitors don’t copy your program and steal your market? The sad truth is you can’t, as Apple discovered when Microsoft “borrowed” its graphical user interface to build Windows and corner the PC operating system market. But there are steps you can take to give you an edge over your competition and make it more difficult for others to copy or steal your work. You can protect your software with patents, copyrights and trademarks.
A patent grants an inventor the right to exclude others from making, using, importing or selling an invention in the United States. The U.S. Patent & Trademark Office (USPTO) issues patents, which are valid for 20 years from the date when the patent was filed, subject to payment of maintenance fees. U.S. patents are valid only within the United States, U.S. territories and possessions.
How Patents Protect Software
Patents can prevent a competitor from making or selling software that utilizes technology covered by your patent. Software companies often use patents to block competitors or extract licensing or royalty fees.
Computer software has only recently become patentable. Currently you can patent computer software, data structures and business methods in the United States. The invention must be sufficiently different from what has been used or described before such that it is “nonobvious to a person having ordinary skill in the area of technology related to the invention.”
How to Obtain a Patent
You must file for a patent within one year of the date your invention was used or sold publicly in this country. You are strongly encouraged to hire a qualified patent attorney to prepare and file your patent. Patents typically cost between $5,000-$10,000 to obtain and several thousand dollars more to maintain. It usually takes several months to prepare a patent, then 1-2 years for the patent office to review and approve the patent.
To obtain a patent:
- Perform preliminary patentability search. Because of the significant expense in securing a patent, it’s wise to ensure your invention is novel and there is no “prior art.” This will cost between $500-$1,000. You can do this yourself or hire an attorney. A good place to start is the USPTO Patent Database.
- Prepare the patent application. This includes an abstract, detailed description, claims and supporting drawings. This is a difficult task and typically should be performed by an experienced patent attorney. You can save some money by initially preparing the documents yourself, but you should have a patent attorney review your application thoroughly before filing. Cost will range from $2,000-$7,000 or more, depending on the complexity of the patent.
- File the patent with the USPTO. This can be done online or via express mail. Filing fee is $355.
- Amend the patent as needed. After you file the patent application, you enter the “prosecution phase” during which the USPTO may ask for changes or additional information. It’s not unusual for the USPTO to require 2-3 amendments costing $500-$2,000 each.
- Issue the final patent. After the prosecution phase, the USPTO will issue a Notice of Allowance. At this point, you must submit formal patent drawings to replace your original informal drawings, finalize the application, and pay a $685 issue fee.
- After your patent is granted, you must pay maintenance fees 3.5, 7.5, and 11.5 years after the grant date. These fees range from $465 to $3,910 depending on patent age and company size.
For More Information
- USPTO Patent FAQ
- WIPO Patent FAQ
- What It Costs to Obtain a Patent
- Guide to Protection for Computer Software: Patents
- Guide to Patent Protection for Computer Software
- Why Protect Software Through Patents
A copyright grants the owner the exclusive right to reproduce the copyrighted work, prepare derivative works, distribute copies of the copyrighted work, and display the copyrighted work publicly. Copyrights apply to “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The Copyright Office of the Library of Congress issues copyrights, which are typically valid for the life of the owner plus 70 years.
How Copyrights Protect Software
Copyrights can prevent a competitor from replicating your software program, documentation and code. This includes the structure, sequence, organization and “look and feel” of a program. However, copyrights protect only the expression of an idea, not the idea itself. Copyrights do not protect program logic, algorithms, systems, methods, concepts, or output layouts.
How to Obtain a Copyright
Your software, code and documentation is automatically copyrighted the moment you publish it. However, there are advantages to formally registering a copyright:
- Establishes a public record of the copyright,
- Establishes prima facie evidence of the copyright (if filed within 5 years of publication),
- Allows you to sue for copyright infringement,
- Allows you to recover statutory damages and attorney fees in court (only if you register the copyright within 3 months of publication; otherwise, you can only recover actual damages), and
- Enables the U.S. Customs Service to prevent importation of infringing copies.
To obtain a copyright:
- Complete copyright application Form TX.
- Include the filing fee (typically $45) and one copy of the material to be copyrighted.
- Send to: Library of Congress, Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000.
For More Information
- Copyright Registration for Computer Programs
- Copyright FAQ
- A Guide to Copyright – Software Protection
- Copyright Protection – International Legal Protection for Software
- Guide to Protection of Computer Software: Copyrights
A trademark grants the owner the exclusive use of a word, name or symbol (mark) to describe a product and distinguish it from other products. A service mark is a trademark for services. The USPTO issues trademarks, which are valid potentially forever, provided the owner continues to use the trademark and comply with renewal requirements. However, if the owner stops using the trademark for three years or more, this is considered “abandonment” and may result in losing the trademark.
How Trademarks Protect Software
Trademarks can protect the name of a software company, its products and taglines, and prevent competitors from using similar names. Trademarks protect software brands, but not the software or code itself.
How to Obtain a Trademark
You can claim a trademark simply by adding “TM” to a name. But obtaining a federally registered trademark has several advantages:
- Serves as public notice of your mark ownership and enables you to use the ® symbol,
- Provides a legal presumption of your ownership nationwide, and
- Grants you the exclusive right to use the mark.
Obtaining a trademark is fairly easy:
- Choose one or more marks to register. These names should uniquely describe your company or product(s) and not be confusing with other registered trademarks.
- Search the trademark database to ensure that nobody is currently using your mark. You can also hire a lawyer to perform a more thorough search including unregistered trademarks, but this is often unnecessary unless your mark is close to an existing trademark or in some dispute.
- File your trademark application online and pay by credit card or electronic funds transfer. You can also file by regular mail. Fees range from $75 to $310 or more, depending on company size and other factors.
For More Information
- Trademarks at USPTO
- Trademark FAQ
- Trademark Applications and Registrations Retrieval database (TARR)
- Trademark Electronic Application System (TEAS)
- Trademark Manual of Examining Procedure (TMEP)
Article published on June 6, 2008
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