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Legal Protection of
Computer Software

     Olli Pitkänen
       D.Sc, LL.M.
Intellectual Property Rights (IPR)

• Copyright
    – Automatic international protection for expressions
      of creative works
• Patents
    – Protects new, useful, nonobvious inventions
    – Not abstract ideas, but an application needed
• Trademarks
    – Business brands (logo, phrase, graphic symbol, …)
      that distinguish products or services can be
      registered or established.
• Database protection, trade secrets, design right, …
                                                                   2
                                                   Olli Pitkänen
IPR in software

• Special problems in applying old regimes to novel areas
   – Copyright was developed to protect arts and
     literature, patent was to protect inventions in
     physical machines, and so on
   – In 1970’s and early 1980’s, World Intellectual
     Property Organisation (WIPO) was driving at
     special kind of (sui generis) protection for computer
     programs, but failed to get international support
   – Since then, especially copyright and patent systems
     have been stretched to cover also software
   – In the EU especially Directive 91/250/EEC on the
     legal protection of computer programs
      • In Finland, implemented in the Copyright Act                   3
                                                       Olli Pitkänen
Sample Cases

• Software Project
   – Software developed for one customer
• PC Software Product
   – Standard product to be sold to numerous
     customers
• Embedded software
• Smart Phone Application
   – Application to be sold through the ecosystem’s
     market place – complying with standards, rules
• Facebook Application
   – Software as a service to be used within other
     software                                                     4
                                                  Olli Pitkänen
Copyright in programs: coverage

• Copyright protects original expression of creative works
    – NOT protecting ideas, algorithms
    – Threshold to protect computer program is not high,
      but there must have been significant choices in
      developing the program
       • If e.g. due to technical constraints only one
         solution is possible, not copyrightable
       • No-one else would have implemented the
         program in the same way
• Copyright protects the whole program and its parts as
  long as they represent creativity

                                                                     5
                                                     Olli Pitkänen
Copyright in programs:
            exclusive rights
• Copyright gives the right holder an exclusive right to
  copy the work and to make it available to the public
• Usually, copyright does not cover the usage of the work
    – E.g. one may read a book without permission
• Installing and running a computer program involves
  making copies  using a program usually requires
  permission, a license
• Exhaustion: the exclusive rights usually apply only to
  the first sell, reselling a legal copy does not infringe
  copyright. However, reselling software requires new
  copies. Mixed court cases (see e.g. KKO 2003:88)

                                                                      6
                                                      Olli Pitkänen
Copyright in programs: limitations

• Right to make copies and modifications
    – Permission not required, if necessary for the
      intended purpose (including error correction) by the
      lawful acquirer.
    – Can be overridden by the license agreement
• Right to make back-up copies
    – Mandatory, cannot be overridden
• Right to observe the functioning of the program to
  determine the underlying ideas and principles which
  underlie any element of the program
    – Ideas and principles are not copyrightable
    – Mandatory, cannot be overridden
                                                                     7
                                                     Olli Pitkänen
Copyright in programs: limitations

• Decompilation
    – Ok, if indispensable to obtain the information
      necessary to achieve the interoperability of an
      independently created computer program
    – Requires
        • a right to use the program,
        • the information is not readily available
    – The information may not be used for other goals
• Copyright in computer programs and databases is
  automatically assigned to the employer, if the work is
  created in an employment relationship
    – Excl. university researchers and teachers
                                                                     8
                                                     Olli Pitkänen
Is Software Patentable?

• In Europe, mere computer programs do not qualify for
  patents – in theory
    – program as a part of another invention may qualify,
       e.g embedded software may be patentable
    – in practice, almost any program can be patentable
• In the USA, programs are widely patentable –
  nowadays also business methods and many other
  subject matters patentable
• Worldwide active ongoing discussion

                                                                    9
                                                    Olli Pitkänen
Software patents

• Patent protects new, useful, nonobvious inventions
• Only rarely a program is an invention as a whole, but a
  program may include many inventions
• A patentable invention is the concrete embodiment of
  an idea: a device, a product, a process or a method for
  making something
• Computer programs are often patented as an
  implementation of a method or as a part of a system
  consisting of devices and software




                                                                    10
                                                    Olli Pitkänen
Sample Software Patent




                                         11
                         Olli Pitkänen
How to read software patents?

• Patent abstracts are often misleadingly broad
• Claims are the important part
• For example, the previous sample patent application
 (US2008276313) includes 7 claims that define precisely
 the scope of the patent
   – “1. A method for installing an applianced domain name server, the
     method comprising:
     forming a software installation package for the domain name server,
     the software installation package comprising:
       • a hardened operating system;
       • a securely pre-configured domain name server software; …”

• Description may help to understand the claims                                   12
                                                                  Olli Pitkänen
Software Patents: Pros

• Object of the patent more suitable than the object of
  copyright
    – Programs more like machines than literature?
• More reasonable expiration time (max 20 years)
    – yet too long?
• Publicity is useful for the industry
    – Patent system spreads knowledge
• More established practice e.g as securities
    – A start-up company with patents (applications?)
      gets funding easier than just with copyright

                                                                     13
                                                     Olli Pitkänen
Software Patents: Cons

• Unnecessary if copyright protects software
    – Does it?
• Laborious, expensive application procedure favors large
  corporations although small enterprises are often more
  innovative
• Patent system in general questionable
    – On the societal level, do benefits outweigh the
      drawbacks?
• Favors American companies
• Practical problems
    – the incompetence of patent offices 
      lots of poor patents esp. in the USA               14
                                                    Olli Pitkänen
Trademark

• It is often a good idea to use brands when marketing
  computer programs
• Trademark protects brands, like the name of the
  program, a logo, or a graphic symbol
    – Distinguish a program from competing programs
• Trademark does NOT protect the program itself
    – Trademark does not prevent e.g. unauthorized
      copying of the program code
• Trademark can be established, but because that is
  uncertain and slow, it is usually advisable to register at
  least the name of a commercial program

                                                                       15
                                                       Olli Pitkänen
IPR Strategy

• IPR allows one actor to affect how the others allocate
  their resources
• IPR Strategy: how to get and utilize intellectual property
  rights and how to monitor and control them
   – An IPR strategy also includes the organization of costs and
     responsibilities
• IPR Strategy is based on business needs.
   – Should be a part of business strategy, but in many cases the
     link is weak
   – Sometimes written, often just an established policy
• Obviously, the meaning of the IPR Strategy can vary a
 lot in different businesses
                                                                            16
                                                            Olli Pitkänen
Copyright Strategy

• Because copyright is achieved automatically, a
  company doesn’t need a strategy to decide when to
  seek copyright
• Instead, a strategy is needed to decide
    – how the copyright is licensed or assigned, and
    – how to monitor and enforce the copyright
       • e.g. how to react if a business partner infringes
         the copyright




                                                                      17
                                                      Olli Pitkänen
Patent Strategy

• In principle, a patent protects a certain technological
  invention
• In practice, it is more like a business tool
• Patents need to be applied for
    – It is a significant investment to build a patent
      portfolio
    – Have to decide how many and what kind of
      applications are made, in which countries, …
• Also a strategy is needed to decide how to license
  patents and how to monitor and enforce them
• A patent strategy can be active or passive; offensive or
  defensive
                                                                       18
                                                       Olli Pitkänen
Why to patent?

• To prevent others from using
 the invention is just one reason
 to get a patent
• Even an application can be
 very valuable to ensure the
 investors to fund a company
• Patents may promote
 marketing
• A patent portfolio can be a
 very valuable tool in
 negotiations (e.g. Nokia v.
 Qualcomm)
• License fees esp. from            Cohen et al, 2002   Olli Pitkänen
                                                                        19
Example

• A Finnish SME in software industry
• Decides to file about 5 patent applications annually
• 1st file in the USA (cost ca $5000-$20000 / application)
• Within 12 months PCT application
• Within 30 months EPO and some national applications
   – EPO covers even 30 countries
   – Costs about 5000 € per country
• Patent portfolio is extended actively
• Ready to defend and negotiate actively
• Will not attack actively
                                                                     20
                                                     Olli Pitkänen
Defending IPR

• The right-holder must observe possible violations itself
    – There is no such thing as “IPR Police” that would
      seek for infringements
    – However, the right-holders can get help from
      officials, like the police, customs, courts, etc, when
      they find violations
• IPR violation can be a crime
    – Usually the punishments (jail, fine) are mild
• Compensations can be significant
• Costs of litigation as well as coercive measures, like an
  injunction order during the trial can become truly
  expensive
                                                                       21
                                                       Olli Pitkänen
Defending trademarks

• The right-holder must defend trademarks
   – Give a notice, if others are using the trademark in a
     confusing way
   – If you don’t defend your trademark, you may loose it
   – E.g. Aspirin is no longer a trademark in the USA, but
     can refer to any painkiller, while in many countries
     (e.g. in Finland) it is still a registered trademark
   – In contrast, patents and copyright don’t need to be
     defended
       • A patent holder may remain hidden and start to
         claim royalties after being unnoticed for years
         (“submarine patents”)
                                                                    22
                                                    Olli Pitkänen
Software project

• In a software project, one participant (e.g. a consultant
  company) may develop the concept for a program,
  another (e.g. a software company) implements the
  program, and the customer is actively involved in each
  phase
• Expertise, labour, and time is needed from everybody,
  but they are usually not protected by intellectual
  property rights
   – Copyright is gained by originality and creativity, and patent
     requires inventiveness, it does not matter how much effort
     and skills somebody has put to produce the program
   – Database protection being an exception: requires investment
                                                                               23
                                                               Olli Pitkänen
Who is the creator, inventor in a
          software project?
• Remember, purely abstract ideas are not protected
• New, nonobvious inventions can be patentable if they
  are well described and concrete enough
• Original expressions can be copyrightable
• In a project many people are often brainstorming and
  bouncing off ideas – later it can be difficult to find out
  whose idea was the valuable one
   – Not a big problem within one company: the employer can
     usually get the inventions and copyrightable works anyway
   – Problem, if people are from different organizations
   – Solution: always make a written contract in
     advance
                                                                           24
                                                           Olli Pitkänen
IPR in Project Outcome

• A computer program developed in a project by a vendor
  for a customer is usually copyrightable
• Project agreement should define whether the customer
  gets the copyright or only a license to use the program
• The program may include inventions, but they are
  seldom patented, because both the vendor and the
  customer lack interest
• Trade secrets can be important to protect especially the
  customer’s confidential information
• Trademarks are less important in relation to customer
  specific programs that are not for mass markets

                                                                    25
                                                    Olli Pitkänen
Software Components

   • Software that is developed in a project
    includes three kinds of components,
    which may involve different IPR:
      – Customer-specific components
          • Esp. copyright and trade secrets
      – Vendor’s library components
          • Esp. copyright and patents
      – Third parties’ standard components
          • Any IPR
      – Important to take notice of license
        terms
                                          Olli Pitkänen
PC Software Products

• Software that is not customized, but replicated and
  sold in large quantities
• The program itself does not include customer-
  specific information, customer’s trade secrets, etc
• Copyright is the main protection
• Patented inventions may exist
• Trademarks are very important to support
  marketing
• End-user license agreements present standard
  terms and conditions on licensing IPR


                                                                        27
                                                        Olli Pitkänen
Embedded software

• Program to control devices other than normal
  computers
    – Specialized for the particular hardware
    – Time and memory constraints
• Copyrightable like any software
    – Hardware constraints may reduce choices in
      developing the program, thus not necessarily
      creative enough
• Program as a part of the embedded system can be
  easier to patent than inventions in stand-alone software


                                                                     28
                                                     Olli Pitkänen
Smart Phone Application

• Ecosystems (Apple, Google Android, Microsoft
  Windows) have their own rules, guidelines and
  technical constraints, which may limit copyrightability
• Standards in mobile industry may also set constraints
    – Certain functionality needs to be implemented in a
      standard way to make it interoperable with other
      systems, which leaves little room for creativity
• In general smart phone applications, however, are
  copyrightable and patentable like any programs
• Ecosystems may have their own licensing policies

                                                                     29
                                                     Olli Pitkänen
Standards and IPR

• Mobile industry relies heavily on standards
• To get one’s own patented invention included in a
  standard, may force others to pay royalties
• Standardization bodies have their own IPR rules
    – Sometimes it is required that all the participants
      disclose their IPR in advance
    – Sometimes they are required to license for free
    – Nowadays, it is typical that taking part in a
      standard-setting process requires that everyone
      undertakes to license its IPR (especially essential
      patents) in fair, reasonable, and non-discriminatory
      terms (FRAND)
                                                                      30
                                                      Olli Pitkänen
Facebook Application

• Software as a service (SaaS) on
  top of the Facebook Platform,
  which provides the application with
  Facebook data including users’
  social networks
• Complying with the environment
   – The Platform constraints functionality and implementation
• Apps are usually copyrightable as any programs
• Patents are also possible
   – E.g. Zynga has applied for patents related to game based
     incentives for commerce
• Trademarks are very important                                             31
                                                            Olli Pitkänen
Conclusions: Copyright

• Copyright gives a good basic protection for computer
 programs
   – Automatic, no need to file applications
   – Covers the whole program
   – Limited to a certain implementation, does not
     protect ideas or inventions
      • Copyright-holder can object modifications, but if
        the program is completely rewritten, it doesn’t
        infringe copyright
   – Copyright is the basis of end-user licensing and
     open source licensing

                                                                    32
                                                    Olli Pitkänen
Conclusions: Patent

• In Europe, it is still somewhat challenging to get a
  patent for a software related invention since the law
  forbids patenting computer programs as such
• If granted, software patent may provide stronger
  protection than copyright since patent is not that
  implementation specific
• Patent does not usually cover the whole program like
  copyright, but merely an invention within the program
     – One program may include many patentable
       inventions
• For a software business, patents may have significant
  other benefits, like appreciation among investors
                                                                         33
                                                         Olli Pitkänen
Conclusions: Trademarks

• Especially in mass markets, brands can be very
  valuable
• It is unwise not to protect brands by trademarks
     – It is easy and relatively inexpensive to register a
        trademark
     – Trademarks need to be defended, however




                                                                        34
                                                        Olli Pitkänen

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Legal protection of computer software

  • 1. Legal Protection of Computer Software Olli Pitkänen D.Sc, LL.M.
  • 2. Intellectual Property Rights (IPR) • Copyright – Automatic international protection for expressions of creative works • Patents – Protects new, useful, nonobvious inventions – Not abstract ideas, but an application needed • Trademarks – Business brands (logo, phrase, graphic symbol, …) that distinguish products or services can be registered or established. • Database protection, trade secrets, design right, … 2 Olli Pitkänen
  • 3. IPR in software • Special problems in applying old regimes to novel areas – Copyright was developed to protect arts and literature, patent was to protect inventions in physical machines, and so on – In 1970’s and early 1980’s, World Intellectual Property Organisation (WIPO) was driving at special kind of (sui generis) protection for computer programs, but failed to get international support – Since then, especially copyright and patent systems have been stretched to cover also software – In the EU especially Directive 91/250/EEC on the legal protection of computer programs • In Finland, implemented in the Copyright Act 3 Olli Pitkänen
  • 4. Sample Cases • Software Project – Software developed for one customer • PC Software Product – Standard product to be sold to numerous customers • Embedded software • Smart Phone Application – Application to be sold through the ecosystem’s market place – complying with standards, rules • Facebook Application – Software as a service to be used within other software 4 Olli Pitkänen
  • 5. Copyright in programs: coverage • Copyright protects original expression of creative works – NOT protecting ideas, algorithms – Threshold to protect computer program is not high, but there must have been significant choices in developing the program • If e.g. due to technical constraints only one solution is possible, not copyrightable • No-one else would have implemented the program in the same way • Copyright protects the whole program and its parts as long as they represent creativity 5 Olli Pitkänen
  • 6. Copyright in programs: exclusive rights • Copyright gives the right holder an exclusive right to copy the work and to make it available to the public • Usually, copyright does not cover the usage of the work – E.g. one may read a book without permission • Installing and running a computer program involves making copies  using a program usually requires permission, a license • Exhaustion: the exclusive rights usually apply only to the first sell, reselling a legal copy does not infringe copyright. However, reselling software requires new copies. Mixed court cases (see e.g. KKO 2003:88) 6 Olli Pitkänen
  • 7. Copyright in programs: limitations • Right to make copies and modifications – Permission not required, if necessary for the intended purpose (including error correction) by the lawful acquirer. – Can be overridden by the license agreement • Right to make back-up copies – Mandatory, cannot be overridden • Right to observe the functioning of the program to determine the underlying ideas and principles which underlie any element of the program – Ideas and principles are not copyrightable – Mandatory, cannot be overridden 7 Olli Pitkänen
  • 8. Copyright in programs: limitations • Decompilation – Ok, if indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program – Requires • a right to use the program, • the information is not readily available – The information may not be used for other goals • Copyright in computer programs and databases is automatically assigned to the employer, if the work is created in an employment relationship – Excl. university researchers and teachers 8 Olli Pitkänen
  • 9. Is Software Patentable? • In Europe, mere computer programs do not qualify for patents – in theory – program as a part of another invention may qualify, e.g embedded software may be patentable – in practice, almost any program can be patentable • In the USA, programs are widely patentable – nowadays also business methods and many other subject matters patentable • Worldwide active ongoing discussion 9 Olli Pitkänen
  • 10. Software patents • Patent protects new, useful, nonobvious inventions • Only rarely a program is an invention as a whole, but a program may include many inventions • A patentable invention is the concrete embodiment of an idea: a device, a product, a process or a method for making something • Computer programs are often patented as an implementation of a method or as a part of a system consisting of devices and software 10 Olli Pitkänen
  • 11. Sample Software Patent 11 Olli Pitkänen
  • 12. How to read software patents? • Patent abstracts are often misleadingly broad • Claims are the important part • For example, the previous sample patent application (US2008276313) includes 7 claims that define precisely the scope of the patent – “1. A method for installing an applianced domain name server, the method comprising: forming a software installation package for the domain name server, the software installation package comprising: • a hardened operating system; • a securely pre-configured domain name server software; …” • Description may help to understand the claims 12 Olli Pitkänen
  • 13. Software Patents: Pros • Object of the patent more suitable than the object of copyright – Programs more like machines than literature? • More reasonable expiration time (max 20 years) – yet too long? • Publicity is useful for the industry – Patent system spreads knowledge • More established practice e.g as securities – A start-up company with patents (applications?) gets funding easier than just with copyright 13 Olli Pitkänen
  • 14. Software Patents: Cons • Unnecessary if copyright protects software – Does it? • Laborious, expensive application procedure favors large corporations although small enterprises are often more innovative • Patent system in general questionable – On the societal level, do benefits outweigh the drawbacks? • Favors American companies • Practical problems – the incompetence of patent offices  lots of poor patents esp. in the USA 14 Olli Pitkänen
  • 15. Trademark • It is often a good idea to use brands when marketing computer programs • Trademark protects brands, like the name of the program, a logo, or a graphic symbol – Distinguish a program from competing programs • Trademark does NOT protect the program itself – Trademark does not prevent e.g. unauthorized copying of the program code • Trademark can be established, but because that is uncertain and slow, it is usually advisable to register at least the name of a commercial program 15 Olli Pitkänen
  • 16. IPR Strategy • IPR allows one actor to affect how the others allocate their resources • IPR Strategy: how to get and utilize intellectual property rights and how to monitor and control them – An IPR strategy also includes the organization of costs and responsibilities • IPR Strategy is based on business needs. – Should be a part of business strategy, but in many cases the link is weak – Sometimes written, often just an established policy • Obviously, the meaning of the IPR Strategy can vary a lot in different businesses 16 Olli Pitkänen
  • 17. Copyright Strategy • Because copyright is achieved automatically, a company doesn’t need a strategy to decide when to seek copyright • Instead, a strategy is needed to decide – how the copyright is licensed or assigned, and – how to monitor and enforce the copyright • e.g. how to react if a business partner infringes the copyright 17 Olli Pitkänen
  • 18. Patent Strategy • In principle, a patent protects a certain technological invention • In practice, it is more like a business tool • Patents need to be applied for – It is a significant investment to build a patent portfolio – Have to decide how many and what kind of applications are made, in which countries, … • Also a strategy is needed to decide how to license patents and how to monitor and enforce them • A patent strategy can be active or passive; offensive or defensive 18 Olli Pitkänen
  • 19. Why to patent? • To prevent others from using the invention is just one reason to get a patent • Even an application can be very valuable to ensure the investors to fund a company • Patents may promote marketing • A patent portfolio can be a very valuable tool in negotiations (e.g. Nokia v. Qualcomm) • License fees esp. from Cohen et al, 2002 Olli Pitkänen 19
  • 20. Example • A Finnish SME in software industry • Decides to file about 5 patent applications annually • 1st file in the USA (cost ca $5000-$20000 / application) • Within 12 months PCT application • Within 30 months EPO and some national applications – EPO covers even 30 countries – Costs about 5000 € per country • Patent portfolio is extended actively • Ready to defend and negotiate actively • Will not attack actively 20 Olli Pitkänen
  • 21. Defending IPR • The right-holder must observe possible violations itself – There is no such thing as “IPR Police” that would seek for infringements – However, the right-holders can get help from officials, like the police, customs, courts, etc, when they find violations • IPR violation can be a crime – Usually the punishments (jail, fine) are mild • Compensations can be significant • Costs of litigation as well as coercive measures, like an injunction order during the trial can become truly expensive 21 Olli Pitkänen
  • 22. Defending trademarks • The right-holder must defend trademarks – Give a notice, if others are using the trademark in a confusing way – If you don’t defend your trademark, you may loose it – E.g. Aspirin is no longer a trademark in the USA, but can refer to any painkiller, while in many countries (e.g. in Finland) it is still a registered trademark – In contrast, patents and copyright don’t need to be defended • A patent holder may remain hidden and start to claim royalties after being unnoticed for years (“submarine patents”) 22 Olli Pitkänen
  • 23. Software project • In a software project, one participant (e.g. a consultant company) may develop the concept for a program, another (e.g. a software company) implements the program, and the customer is actively involved in each phase • Expertise, labour, and time is needed from everybody, but they are usually not protected by intellectual property rights – Copyright is gained by originality and creativity, and patent requires inventiveness, it does not matter how much effort and skills somebody has put to produce the program – Database protection being an exception: requires investment 23 Olli Pitkänen
  • 24. Who is the creator, inventor in a software project? • Remember, purely abstract ideas are not protected • New, nonobvious inventions can be patentable if they are well described and concrete enough • Original expressions can be copyrightable • In a project many people are often brainstorming and bouncing off ideas – later it can be difficult to find out whose idea was the valuable one – Not a big problem within one company: the employer can usually get the inventions and copyrightable works anyway – Problem, if people are from different organizations – Solution: always make a written contract in advance 24 Olli Pitkänen
  • 25. IPR in Project Outcome • A computer program developed in a project by a vendor for a customer is usually copyrightable • Project agreement should define whether the customer gets the copyright or only a license to use the program • The program may include inventions, but they are seldom patented, because both the vendor and the customer lack interest • Trade secrets can be important to protect especially the customer’s confidential information • Trademarks are less important in relation to customer specific programs that are not for mass markets 25 Olli Pitkänen
  • 26. Software Components • Software that is developed in a project includes three kinds of components, which may involve different IPR: – Customer-specific components • Esp. copyright and trade secrets – Vendor’s library components • Esp. copyright and patents – Third parties’ standard components • Any IPR – Important to take notice of license terms Olli Pitkänen
  • 27. PC Software Products • Software that is not customized, but replicated and sold in large quantities • The program itself does not include customer- specific information, customer’s trade secrets, etc • Copyright is the main protection • Patented inventions may exist • Trademarks are very important to support marketing • End-user license agreements present standard terms and conditions on licensing IPR 27 Olli Pitkänen
  • 28. Embedded software • Program to control devices other than normal computers – Specialized for the particular hardware – Time and memory constraints • Copyrightable like any software – Hardware constraints may reduce choices in developing the program, thus not necessarily creative enough • Program as a part of the embedded system can be easier to patent than inventions in stand-alone software 28 Olli Pitkänen
  • 29. Smart Phone Application • Ecosystems (Apple, Google Android, Microsoft Windows) have their own rules, guidelines and technical constraints, which may limit copyrightability • Standards in mobile industry may also set constraints – Certain functionality needs to be implemented in a standard way to make it interoperable with other systems, which leaves little room for creativity • In general smart phone applications, however, are copyrightable and patentable like any programs • Ecosystems may have their own licensing policies 29 Olli Pitkänen
  • 30. Standards and IPR • Mobile industry relies heavily on standards • To get one’s own patented invention included in a standard, may force others to pay royalties • Standardization bodies have their own IPR rules – Sometimes it is required that all the participants disclose their IPR in advance – Sometimes they are required to license for free – Nowadays, it is typical that taking part in a standard-setting process requires that everyone undertakes to license its IPR (especially essential patents) in fair, reasonable, and non-discriminatory terms (FRAND) 30 Olli Pitkänen
  • 31. Facebook Application • Software as a service (SaaS) on top of the Facebook Platform, which provides the application with Facebook data including users’ social networks • Complying with the environment – The Platform constraints functionality and implementation • Apps are usually copyrightable as any programs • Patents are also possible – E.g. Zynga has applied for patents related to game based incentives for commerce • Trademarks are very important 31 Olli Pitkänen
  • 32. Conclusions: Copyright • Copyright gives a good basic protection for computer programs – Automatic, no need to file applications – Covers the whole program – Limited to a certain implementation, does not protect ideas or inventions • Copyright-holder can object modifications, but if the program is completely rewritten, it doesn’t infringe copyright – Copyright is the basis of end-user licensing and open source licensing 32 Olli Pitkänen
  • 33. Conclusions: Patent • In Europe, it is still somewhat challenging to get a patent for a software related invention since the law forbids patenting computer programs as such • If granted, software patent may provide stronger protection than copyright since patent is not that implementation specific • Patent does not usually cover the whole program like copyright, but merely an invention within the program – One program may include many patentable inventions • For a software business, patents may have significant other benefits, like appreciation among investors 33 Olli Pitkänen
  • 34. Conclusions: Trademarks • Especially in mass markets, brands can be very valuable • It is unwise not to protect brands by trademarks – It is easy and relatively inexpensive to register a trademark – Trademarks need to be defended, however 34 Olli Pitkänen