19 Apr Beyond the screws and gears: Protecting your products by protecting your software
Companies that do not specialize in software, but incorporate software-based components (such as microprocessors or microcontrollers) into their products, more often than not, overlook the importance of protecting that software. The software may not be the biggest feature or the most prevalent feature of the product, but a feature nonetheless and a feature that can and should be protected.
For example, many vehicles, such as motorcycles, trucks and even construction equipment, include one or more processors or an on-board computer that control and monitor the operation of that vehicle. There are many aftermarket companies that specialize in software to modify the operation of those vehicles. These companies use and exploit the manufacturer’s own software to sell their aftermarket software and services. By protecting its software, the manufacturer can limit and even prevent other companies from developing and selling aftermarket software that run and thrive on those vehicles.
Software has the luxury of being protected using many different tools. The traditional means of protecting software includes copyright. However, more and more companies have sought to obtain patent protection for their software and have registered trademarks to protect the name or brand identity under which the software is marketed and sold. For example, a single software program can be registered with the U.S. Copyright Office, as well as patented in the U.S. Patent and Trademark Office. One can also protect the brand name for the software as a trademark. Each tool (copyright, patent, and trademark) offers a different method of protecting that software.
Assuming the copyright owner can prove there was access to the source code, copyright law prevents another party from selling or using even a portion of substantially similar code. Trademark protection allows the owner to prevent others from using the trademark or any mark confusingly similar thereto in connection with similar products or services.
Patent protection is often overlooked by companies as a viable option of protecting software. Patent protection provides the patent owner the exclusive right to exclude others from making, using or selling the patented invention during the life of the patent (e.g., twenty years from the date which the patent application was filed). Software can be patented in many forms provided that the form meets the requirements of patentability. For example, software can be patented as a computer readable media, a novel method of performing a function or task, or as a system performing certain tasks, to name a few.
Patented software, coupled by one or more copyrights or trademarks, can provide a company with various levels of protection. It can also provide protection to an entirely different aspect of a product. An aspect of the product that might have been previously exploited.
Elizabeth Ann Egasti a patent engineer in the Milwaukee office of Michael Best & Friedrich LLP and a licensed agent to practice in patent cases. She can be reached at firstname.lastname@example.org.
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