Double Duty

Any business that gains a competitive edge from a custom software engine may wish to consider a multi-faceted IP protection plan. Software can be the subject of a patent, the subject of a copyright, and in some cases, the subject of a trademark (or trade dress) for a unique user interface. Engineers frequently seek patent protection on a new device, but almost invariably focus on the electrical, circuit or mechanical aspects, never considering (or perhaps considering too “soft”) protecting the unique code that runs the new widget. But the original expression in code is just as copyrightable as the novel and nonobvious useful process of code is patentable. From an enforcement perspective there is almost no richer or worse type of suit to prosecute or defend. Software code can be the hardest to convey to a judge or a jury, even without throwing in the impenetrability of patent law and claim construction. Similarly, the copyright law surrounding code and user interface protection is literally (small copyright joke) a patchwork quilt.