Assistant to Patent Attorney
Possible Options for the Legal Protection of Software
The modern society relies a lot on the computer technology, and the computer, in turn, can not work without the software. It is therefore not surprising that the protection of the software as an intellectual property is an important component not only for the software industry, but also for other branches of the economy as a whole. And the issues of the software protection as an intellectual property are actively discussed by the Russian applicants.
Basically, the software is protected by the copyright. The most important advantage of the protection by the copyright is its simplicity. The copyright protection is automatic – it starts with the creation of a piece of work and does not require an official confirmation, a registration. In addition, the copyright owner enjoys a relatively long protection, which, as a rule, continues throughout the author’s life plus 70 years after the author’s death.
However, the software, unlike other copyright subject-matters, can be registered in the Russian Patent Office, which carries out an official state registration of programs and databases and grants appropriate certificates of registration.
The program for electronic computing machines can be expressed in any language and in any form, including a source text and an object code. The program for electronic computing machines means an objective form of representing a set of data and commands intended for the operation of electronic computing machines and other computer devices with the aim of obtaining a certain result. The program for electronic computing machines also implies the preparatory materials obtained during its development, and the audiovisual images, which it generates (Article 1261 of the Civil Code of the Russian Federation).
To confirm an exclusive right to the programs for electronic computing machines or databases, as a rule, it is sufficient to represent a certificate of the state registration granted by Rospatent.
However, such a certificate confirms the fact of filing an application for the software product registration in the name of a certain person to Rospatent. Rospatent does not check, whether such an individual owns an exclusive right, but it only makes an entry in the state register of programs and databases on the basis of the information provided. It is the applicant who is responsible for the reliability of such information.
In accordance with Paragraph 4 of Article 1259 of the Civil Code of the Russian Federation, the registration of a piece of work or the compliance with any other formalities is not required for the creation, implementation and protection of the copyright. Since the software is protected as pieces of work, the mere fact that the piece of work has been created in any objective form as a result of the author’s creative efforts is sufficient for the creation of the author’s exclusive right to it. However, the registration of the software as a program for electronic computing machines has the following advantages: it allows the right holder to protect his interests more effectively in the event of disputes, the certificate of registration is the main evidence of the exclusive rights to this intellectual property subject-matter, and also it gives an opportunity to assign (sell) the copyright to the software product officially and to distribute it actively. Thus, the certificate of the state registration of the computer program will be the evidence in the event of a dispute: when identifying plagiarism and counterfeiting.
The disadvantage of the state registration of the program for electronic computing machines, despite its official status and an external resemblance to the patenting procedure (filling in an application for granting and the necessary forms), is the fact, that the certificate of registration of the program for electronic computing machines does not grant any additional rights.
And is it possible to patent one’s own program, so that it would be protected as securely as, for example, inventions? According to Paragraph 5 of Article 1350 of the Civil Code of the Russian Federation, patenting programs is not allowed. However, the algorithm of the program, as a sequence of actions (method), can be protected as an invention. The main condition is that the method should carry out actions over material objects with the help of material means (Paragraph 1 of Article 1350 of the Civil Code of the Russian Federation). In addition, when executing an application for a discovery, it is necessary to state in words the nature of the implementation of the algorithm. That is, the algorithm should be represented not by the program language, but by the steps of measures, which implement it. Each such algorithm should be supported by block diagrams and algorithm diagrams. Inventions are patentable, if they contain a technical solution, that is, they solve a concrete technical problem, using concrete technical means. In other words, the algorithm of the software should be aimed at achieving a positive effect in order to be patentable. In addition, three conditions must be observed obligatory: a novelty, an inventive step and an industrial applicability. The advantage of patenting the software as an invention is the monopoly to this technical solution for 20 years; it is easier to enter the international market having a patent. However, there are also disadvantages: it operates territorially; the patent’s cost is high, when it is distributed in other countries, the patent implies the disclosure of the information, and the technology develops faster than the term of the patent expires.
The next option for obtaining the software rights is the protection of the user interface as an industrial design, the user interface is a kind of interfaces in which one party is represented by a user and another party is represented by a device/machine. The user interface is a collection of tools and methods by which the user interacts with various, most often complex machines, devices and equipment. The terms of patenting an interface must comply with the conditions of patentability of an industrial design. Advantages and disadvantages of patenting this intellectual property subject-matter are the same as for patenting inventions.
Drawing a conclusion about possible options for the legal protection of the software, the following should be noted. Only the software developer can choose the method to protect his product weighing the guarantees and risks that can accompany a concrete method chosen among the proposed ones to obtain the legal protection, taking into account the conceptual differences between the copyright and patent right. The best solution, from my point of view, will be a comprehensive protection of Your rights to the software, if the development is serious and promising.