Protecting Software

A software owner needs to consider how it will protect its software. It may be able to protect methods and processes by either trade secret or patent. Patents, however, require revealing the protected process to the public, while trade secret protection requires keeping it confidential. Thus, the same process cannot be protected by both methods. By writing the software, the owner receives copyright protection on the actual expression. This protection does not, however, prevent third parties from independently developing software which performs the same function. When granting a license to a licensee, a vendor needs to consider what protections it has in the software and what rights it wishes to convey to the licensee. The scope of the license granted will govern the licensee’s use. Only if the licensee exceeds the scope may the licensor seek damages or other remedies from a licensee under any intellectual property regimen. Thus, the license grant should be drafted broadly enough to permit use by the licensee but narrowly enough to enable the intellectual property holder to use copyright, patent, or trade secret law to stop or prevent infringement by the licensee.

More information about the book A Practical Guide to Software Licensing for Licensees and Licensors, 2nd edition

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