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More important than ever to protect software?


25th Feb 2013

Software developers often consider that copyright will put them in a strong position to protect their software. However, the limitations of relying on copyright to protect software have recently been highlighted in the case of SAS Institute Inc (SAS) v World Programming Limited (WPL) recently handed down by the High Court of England and Wales.

By way of background, in SAS v WPL, SAS alleged that WPL infringed their copyright. WPL’s software allows application programs to be run in the SAS language. WPL developed their software by reproducing the functionality through use of the SAS system and its manual.

Previously, the High Court judge had referred questions regarding interpretation of the EU software directive to the Court of Justice of the European Union to allow him to come to a view on the subsistence of copyright in SAS’s software. Observing the CJEU’s answers to these questions, the judge took the provisional view that a programming language (such as the SAS language) is not capable of being a copyright work (meaning it does not attract copyright protection) and that data file formats are not “fixed” (again, meaning they cannot be protected under copyright).

Given the limited protection afforded by copyright highlighted by this case, other intellectual property rights should clearly be considered when seeking to protect software. Patents can be used to protect the functionality of software and, in the light of this case, appear more important than ever. While valid patent protection cannot be obtained for all software inventions in all jurisdictions, careful choice of jurisdiction and thorough drafting of patent applications focussing on selected functionality for these jurisdictions can have the desired effect of keeping competitors at bay.

Recent articles in the Financial Times and on the BBC News website reporting a summary of patent activities at WIPO (the World Intellectual Property Office) reflect on the colossal growth of patent applications for computer related inventions in recent times. More than 14,000 international patent applications were filed in 2012 in this area, which is an increase of nearly 20% over 2011. There were only about 700 such patent applications in 1993. Can so many companies, including some of the world’s largest, be wrong?

In addition to the use of patents, registered designs and trade marks may also be used to obtain useful protection for ancillary aspects of the software, such as on-screen graphics and brand names.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Author
Robert Sackin
Partner
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