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Trade Secrets and Copyrights

Trade secret law and patents protect certain types of ideas. Copyright law prevents copying of the specific expression of an idea; however, it does not protect against someone expressing the same idea in a different way. Because of the cost and difficulty of obtaining patents, most software-related companies use trade secret and copyright law--coupled with contracts and license agreements--for protection.

Patents

Scope. Patents generally cover inventions, meaning technology. Algorithms (mathematical formulas) are generally not protectible unless part of a process. This makes patent protection for software problematic.

Term. The protection lasts the life of the patent (usually 17 years) and applies even if someone independently makes the same invention.

Criteria.

Drawbacks. One problem with patents is that, upon issuance, the owner loses any trade secret rights. Perhaps half of all patents attacked in court are found invalid, and patent litigation is very expensive.

Trade Secrets

Scope. Generally, any information that meets the criteria can be a trade secret.

Term. Trade secret protection lasts forever unless it is independently discovered, reverse engineered or becomes public knowledge.

Criteria.

Drawbacks.

Examples. Trade secrets may include formulas, processes, patterns, software designs, customer lists, customer preferences and internal business and marketing plans.

Confidentiality Agreements.

Copyrights

Scope. Copyright covers original works of authorship fixed in any tangible medium.

Term. For works created prior on or after January 1, 1978, the basic rule is the life of the last-surviving author plus 50 years. With works for hire, the term is 75 years from publication or 100 years from creation.

Criteria

Drawbacks

Ownership

Copyright Notices.

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