Switch (To Trade Secrets)?Īnswering the question of what a trade secret is does not, however, answer the more fundamental question of why software companies should again consider relying upon trade secret protection. More importantly, as software patents become increasingly difficult to procure, the demands for disclosure of novel techniques will only increase. The patent application, therefore, can have profound impact on whether the software technique can be maintained as a trade secret. The quid pro quo of patent protection is that an applicant discloses what is being patented to the public. Here lies one of the fundamental rubs between patent protection and trade secret protection. Second, there must be reasonable efforts to maintain the secrecy of those methods. Putting aside the benefits of open source software development, software companies often derive value in not simply releasing those methods to the public. This is often the case with software since its design is a constant effort to construct and refine efficient algorithms that distinguish the end product from the competition. First, there must be value to the software not being widely known or readily ascertainable. In most states, a “trade secret” is information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value from not being generally known or readily ascertainable by others and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Like in a software application, it is important to begin by defining the key variables. Given the multiple fronts of assault directed at software patents, what strategy should a software company execute in light of these developments? Consider calling the trade secret function. Even if not by edict of the Supreme Court, given a substantial public outcry, ongoing legislative action may itself unravel the patentability of software. 13-298, ( argued 3/31/14) (87 PTCJ 1289, 4/4/14)-a case dealing with the patentability of software-that it was poised to abolish software patenting altogether, future cases may give it the opportunity. Further, although the Supreme Court sent few signals during the recent oral argument in Alice Corporation Pty. Software patents are becoming increasingly difficult to obtain and are becoming even harder to hold in light of the newly created Patent Office inter partes review procedures where software patents make up a significant portion of contested patents. The tides however are undoubtedly changing. The push for patent protection was also fueled by a series of large, highly publicized damage awards supported by claims of software patent infringement. Further, that protection often came without the need for a comprehensive disclosure of the software being patented. The patent system provided broad, monopoly protection against competitors which often lasted long past the effective life of a software product. For decades, innovators in software have turned to the patent system for protection of their ideas.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |