How has IP protection changed for the software and tech industries over the past 30 years?

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Travis Stegemoller, Trademark Attorney: Well, the evolution of IP protection for software really started in the seventies. As the proliferation of software was sold to consumers, it was really sold as is, as the product itself. But then people started to realize that what we’re actually selling is the right to use the software, and so over time Congress caught up and built into the Copyright Act the fact that software is a literary work such that it’s subject to copyrighted protection.

But then later on, especially around the Dot-Com Boom, a lot of folks started to try to patent their software because of the way that it implemented the abstract idea in their business method or their business process. And that’s sort of the whole point of a patent, right, is to protect the method or the process, not the idea itself.

Recently, there’s been some court rulings that have sort of changed the understanding of what is a patent as it relates to software. And so now it’s sort of in flux as to whether or not one should file a copyright for their software or a patent for their software, and it really depends on how the abstract idea manifests itself in real life – like how is it actually used, what does it actually produce?

If it’s more of a method and it’s tangible, you’re probably safer to go down the patent route. But understand that the patent route does come with a shorter timeframe to monopolize and monetize. It’s only approximately 20 years, whereas a copyright can last 95 years if it’s a work for hire, which in most cases in a startup or a tech company, it is.

Alternatively, there’s a third option, which is to protect it as a trade secret and trade secrets last indefinitely so long as the software remains a secret. And you can take contractual steps to maintain that secret with your employees or when you’re disclosing it to vendors or joint development agreements, things of that nature. But at this point in time there’s still a little bit of flexibility in which route you can go, depending on what your software does.