To what extent should we patent our software?
Learn how to protect your ideas
Q. We are engineers who specialise in bathroom plumbing. Our original mechanical patent ran out a few years ago, so we have developed innovative software to control the flow and temperature of water. As a result, we have managed to double our sales. To what extent could we patent our software as we expand into other markets? Can we rely on keeping our code secret and using copyright?
A. Copyright, patents and secrecy are different ways of protecting ideas. They are not mutually exclusive and can be powerful allies. In Europe, at least, the programme you describe is potentially patentable, and protection could be sought for the software, the apparatus and the method in which the program is implemented.
You should always file a patent application before making your invention available. If your invention has already been sold, we would need to investigate whether the programme is still ‘secret’ or in the public domain. Obtaining patent protection following sales will rely on the program still being secret.
A patent application must include a description of how the programme works, but there is no need to publish the code itself, which can be kept secret to stop copying. In practice, it may be difficult to keep program code secret once the invention in which it is incorporated has been released.
Copyright also protects the code, and arises automatically once the programme is recorded. One weakness is that copyright only prevents copying of the code and would not stop competitors independently producing different code to achieve the same result. Patents provide stronger protection and can protect the idea behind the code without requiring proof of copying.
Nick Reeve is a partner and Pete Sadler is an associate at Reddie & Grose, a firm of patent and trademark attorneys based both in London and Cambridge.