What Do You Do When Someone Has Copied Your Software?


One of the most common questions we get asked is “what can I do to protect my software?”

The question often arises where a company has brought out or commissioned a revolutionary piece of new software or a new software platform.

Naturally those businesses often seek to stay ahead of the competition and keeping third parties from copying is a top priority.

The problem is that the answer to the question isn’t that simple!

In some circumstances, where software creates a new technical effect, it may be possible to obtain patent protection. However, software per se, is excluded from patenting under the Patent Act 1977 and obtaining such protection is relatively rare.

Creating software in a proprietary piece of software often means few people will have access to the source code.  Therefore unless someone has access to the source code line by line, copying is highly unlikely. However, the expression of what that software does is a different matter.

If you create software that has certain functionality then it may well be possible for someone to figure out what your software does and then create it in a new program format. If the software is independently created, then it is highly unlikely for your original copyright in the software to have been infringed.

An exception may arise where someone has gained access to part of the software or the copyright flow charts that created the software. In the event that independent creation has arisen then there is nothing you can do about it – and that can be devastating for some businesses.

Using open source software means that your new piece of software has even less security, as the whole idea of open source is that by law anyone can access the original source code. If the coder knows the details of the functionality of the software, i.e. what it is meant to do, then software created in open source code is relatively easy to recreate.

The same rules apply to phone apps!

For many software companies, security lies in protecting the source code as if it were the crown jewels, keeping the functionality up to date and relevant and using other legal mechanisms such as licensing arrangements and trade marks to create a product differentiator.

The point is that technical and legal mechanisms are the only real routes to protection!

We are happy to discuss issues with you at no obligation so don’t hesitate to get in touch via our website.

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