The famous phrase “software is eating the world” refers to the idea that every company needs to consider itself as a software company.  Therefore, intellectual property protection for software is crucial not only for the software industry, but for other businesses as well.

In most countries, computer programs are protected under copyright.  However, while copyright protection protects the literal expression of computer programs, it does not protect the ideas underlying the computer program, which often have considerable commercial value.  That’s where patents come in.

A patent gives the holder the right to prevent others from commercialising the described invention.  Patents can be granted for software so long as there is an underlying invention that is “technical” in nature.  Laws relating to patentability of software are complex and vary between countries.  Practice in Europe tends to be stricter than that in the USA, even considering recent law changes in the US which have curbed some of the worst cases of excessively broad software patents being granted.

Of course, a key aspect of the patent system is publication.  Many patentable software inventions are not published through normal commercial activity, and in such cases it may be wiser to avoid patenting the software, in favour of keeping the code and the underlying techniques as trade secrets.

We’re considering software in a very broad sense of course, but a crucial aspect of consumer products is the user interface.  Registered designs (known as “design patents” in the US) can protect these important creative assets.

Another aspect to watch out for is the tension between proprietary and open-source licences.  It’s important to be clear about your business model and make sure that open-source licence obligations are complied with.

So, when considering IP protection for software, a holistic and commercially focused approach is essential.  You need to look beyond the traditional protections of copyright and patents and make sure that your trade secret policies, commercial and employment contracts and licensing regime are all up to date and working together to protect your IP position.


At Scintilla, we help innovative companies get a grip on their intellectual property. Our unique commercial approach combines registration of patents and trade marks with strategic input so that IP can be a springboard for business growth. If you would like to discuss your IP needs, do contact us or book a free initial consultation!