Software Development And Intellectual Property – How To Avoid (Usual) Pitfalls

Laidebeur & Partners’ team (Photo © Laidebeur & Partners)

Software (or website) development can represent a danger for both the developer and the client if intellectual property questions are not answered at the early stage of the process. You will find below some practical tips to avoid the usual pitfalls.

1. Who will be the owner?

The most important point is to determine who will be the owner of the developments. In absence of other constraints, the owner is and will remain the developer. Even if the client is paying for the whole work, the developer, as author of the source code, but also potentially of the pictures, icons, etc., will maintain its control over the copyrights.

As a consequence, no modification of the software will be allowed, and the developer has to authorise any new use of the software – it is therefore important to define, in a development agreement between the developer and the client, the rules concerning the ownership.

Experts of Laidebeur & Partners can help you negotiating and drafting such a development agreement.

2. What can be protected?

It is essential to consider the various aspects and rights covering software to obtain effective protection: sole protection through copyright is insufficient. The creation of multiple rights will both prevent copying of the software and ensure the best possible valuation of the software and the rights deriving therefrom.

a. Copyrights

One should consider that software protection through copyright is enough.  This protection is automatic; it is created as soon as the code has been written by its author.

However, to avoid difficulties of proof of your rights with respect to third parties, it is highly recommended to file the content of the code with official bodies.

b. Name of the software

The name of the software is a trademark. But use of this sign does not create any rights. Only the registration of this sign as a trademark gives its owner an exclusive right.

Think about carrying out preliminary searches among earlier trademarks to avoid being sued, being forced to change your software name … or simply loosing time, money and energy in useless legal battles!

c. Screen protection using registered designs 

The appearance of the screens, the “look and feel” of the software, are important to attract and retain the users. Said appearance can be protected by registered design rights.

But a design must be new, i.e. it must not have been made available to the public. Filing the application before the public launch of the software is therefore recommended.

d. Functions and patent protection

A patent is the only tool capable of protecting software functions. Even if computer programs as such are excluded from patent protection, computer-implemented inventions may be patentable, provided that your software includes an “inventive technical contribution”. It will therefore be necessary to conduct a case-by-case analysis to determine the various rights you can use to protect your software. Feel free to contact the experts of Laidebeur & Partners for a free meeting to help you create value!

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