Software, Information Technology and Intellectual Property

By Adrian C. O’Donnell
August 2, 2011

Android™, Google™, Facebook™, Xbox™, Blackberry™, Apps, Internet, streaming, servers, hotspots,  and a multitude of other all too familiar terms represent the public face of a global market in information technology (IT)  that exceeded US$760 billion in 2009. Today 5 billion mobile phones, 1.5 billion PCs, portable media players, and gaming consoles provide high volume consumer applications within this information technology market on unprecedented scales.  Downloading applications, new even only a few years ago, represented US$6.8 billion in 2010 (4.5 billion downloads) with anticipated growth to US$29.5 billion in 2013 (21 billion downloads).

Traditionally, protecting software or firmware has been considered to be an issue of copyright law, and thus given same protection as books, movies and music as a “literary work.” The copyright owner has the exclusive right to make / distribute copies, and create derivative works. These rights are the strongest weapons against piracy but they also give the copyright owner rights to prevent works that are “substantially similar” hence preventing the mere changing of a few minor elements to try and avoid infringement.

However, copyright protects “expression” and so another programmer, approaching the same problem, may use a different approach, reach a different solution, and be entitled to copyright protection themselves and not infringe on the rights of the original copyright owner. Accordingly, at Perley-Robertson, we address software and information technology protection from the broader perspective by using patents, design patents, trademarks, and copyright to protect your original concept, products and market.

Patents provide much stronger protection for software, albeit being harder to obtain, by giving the right to prevent anyone from using, creating or selling devices or processes which fall within the terms of the patent, or perform equivalent functions. Hence, all or some of the steps performed in software may be patentable, thereby making any software performing these steps an infringing solution irrespective of code, language, platform, etc. In other instances, the combination of the steps performed and hardware may form the patentable invention.

Design patents (US, industrial designs in Canada) can be exploited to provide protection for a computer icon on a screen, a feature within your application, or the layout of a screen within your application when executed. They can also be exploited to protect the two- or three-dimensional look of a figure or element within software.

Likewise trademarks can be exploited in figurative or word form to provide protection and prevent their use in association with the same products or services. Everyone considers the company name, but what about the software product name, a particular function or feature within the software, or even the name of a character within a gaming application and the associated spin-off products alongside the software. As a figurative mark a trademark can protect the look of a character for use across multiple products and / or services.

Figurative trademarks bring us full circle to copyright as figures, characters, design elements presented to a user of your software application are original artistic works and as such protected by copyright. Unlike patents, design patents and trademarks, a copyrighted work does not have to be registered in a jurisdiction for it to be protected. However, a registered copyright like registered patents, design patents and trademarks automatically provides you with proof of your rights in Court.

There is no cookie-cutter solution to protecting software or the product, application, and service it provides. Hence, we approach each software concept individually and provide an assessment of the options available from our intellectual property armoury as well as their costs and benefits.


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