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[pqsfb]

We are a small company that licensed our embedded software to equipment manufacturers. The code is about one million lines. The function is very common, and quite a few other companies (big and small) provide software has similar functions. We still can get contracts because ours is more efficient. We just have some special way on writing the code.

Going to patent may be overkill for us. We are just two engineers and we are busy in improving the code and selling it. I hear that patent attorneys are expensive. I am not sure if we can apply for patent because the functions are so common.

Will register the copyright help us protecting our IP? When registering software copyright, shall we submit our code entirely? Will others see the code after we register?

Thanks,
-pqsfb

[BobRoberts]

Hi pqsfb,

"Will register the copyright help us protecting our IP? When registering software copyright, shall we submit our code entirely? Will others see the code after we register?"

You have a Copyright (providing that there's sufficient creativity- courts don't require much creativity) upon placing your work in a tangible medium (i.e., printed, computer disc, etc...).  It's almost always better to Register your work with the Copyright Office - it allows you some added benefits, such as Statutory Damages (i.e., don't need to prove your damages for courts to award a 'statutory amount' of $200 - $150,000 depending on the specific circumstances) and possible attorney fees.   It used to be, to be eligible for Stat. Dmgs., that the work needed to be Registered within 5 years of first publication, or before the actual infringement commenced (or Reg. within 3 months of publication if the infringement occurred within 3 months of the publication date).  Perhaps someone can verify if this is still the case. 

Computer code is usually registered as a Literary Work.  Again, it used to be that you could submit the first 25 and the last 25 pages of code as a Copyright Specimine.  Perhaps someone can verify this as well.  Registering your own copyright is something most people can accomplish on their own.

Yes, the code submitted as the specimine may be viewed by the public. 

Re: Patenting- this is a whole different animal.  First, something must be new, useful and non-obvious.  Obviousness is something that has volumes and violumes written about it, and cannot be easily explained.  Even if your functionality is similar, you mentioned it is more efficient.  So there would be a possibility that you can be dealing with Patentable subject matter.  However, to be eligible for US patent protection, you must have a patent application on file within 1 year of your first publication, offer or actual sale, public disclosure or commercial use, or else you lose your ability to seek patent protection on your invention.  In most other countries in the world, the second that you made your invention publically known, you've surrendered any patent protection on your invention that was not filed (as an application) prior to the public disclosure.

You may seek both Patent and Copyright protection for the code (I.e., the rights are not mutually exclusive, but are limited by the circumstances mentioned above). 

Copyright protection allows you to recover for (possible) Statutory Damages, or actual profits lost.  However, independent creation is a defense to Copyright infringement, and Copyright protects the 'creativity' in the code, not the functionality, so another's copying of the functionality without copying the creativity would not be Copyright infringement. 

Patent protection (if you receive it) protects the functionality of the invention, regardless of how it is implements.  Though limited in time (20 years from filing), it is almost always a 'stronger' IP protection.

Don't rule out establishing (or continuing to establish) your Trademark with the product.  Name recognition can be a strong protection if you can associate your mark with the product in people's minds, and be 'the one' that users want...  And, though you can establish Trademark rights without Federal Registration of your mark, Federal Registration is almost always better...

Good luck!

Not to be construed as legal advice, as such advice is rendered only within an attorney/client relationship that is NOT established through a public forum

[Isaac]

Yes, the code submitted as the specimine may be viewed by the public.

I think there is the possibility of providing a redacted specimen.  Perhaps  macktheknife can answer that.

[pqsfb]

Bob, thanks for the detail explanation.

We have been selling (licensing) the software for more than year, though we never public disclose how we implement it more efficient. We just show the result to our potential customers. I am not sure if we are still eligible  for patents. Even if we are, we can not afford the time and efforts and money.

We want the proctection that people can not copy it directly. If they figure out how it was done, it will still take them one year to rewrite the same thing. By that time, we will have more new improvements.

We don't want to publish our code either. Otherwise, it will help others in making the same thing.

[Isaac]

You can register software in executable format.  If you are not releasing the source code, there may not be any point in registering that format.

[BobRoberts]

Interesting, Issac...

Re: the .exe code, would Registration on the Source Code protect against copying of the .exe code?  I would think, 'yes' since the two would be essentially identical?  I'm also thinking from memory, as an anology, about the cases where constructiing a building based on architectural drawings was a Copyright infringement on the architectural plans.  Or perhaps the .exe is considered a derivitave work of the source code? 

And, I believe, at least in some circumstances, there may be decompilers that are capable of reproducing (at least some of) the source code from .exe...  It would be another step, but perhaps that is not the case here.  (only mentioning, because filing as .exe may not guard against competitors getting the code).  But, thinking further, I suppose it puts pqsfb in no worse a position as they were in in releasing the code as an .exe in the first place...

Good luck!

[Isaac]

Re: the .exe code, would Registration on the Source Code protect against copying of the .exe code? 

I would expect so, but you don't really have to choose.  You can do both, but that does not address the disclosure issue.

But, thinking further, I suppose it puts pqsfb in no worse a position as they were in in releasing the code as an .exe in the first place

Let's not forget that registration is a formality.   He already has a copyright in the source code and in the executable.  Perhaps it is not necessary to register the source code copyright if he registers the executable as long as he does not distribute the source.

[mactheknife]

Thanks for the shout out, Isaac.  Haven't been on here in a while.

Yes, there is a way to submit redacted versions of software.  Go to http://www.copyright.gov/circs/circ61.pdf

And as far as which code is protected, I'm no computer guy but it's my impression that registering one covers the other.  However, a human examiner can't really examine object code, so what ends up happening is you will get your certificate along with (separately) a letter saying that registration is made under the "rule of doubt."  Basically this is an acknowledgement that, "we can't really tell if there's copyrightable authorship but we'll take your word for it."

The copyright office circular that I've posted the link to has some different ways of submitting your code if you're worried about competitors.  Finally, there's really no practical way for a third party to get at deposited source code, unless either the copyright owner consents or the third party is involved in litigation involving the work (there may be one other instance which escapes me).

Hope this helps