The development and commercialization of software involve creativity, innovation, and a significant investment of time and resources. For many companies and organizations, software represents a technological solution and a strategic asset of immense value and central to their operations. Therefore, protecting this asset is crucial to ensuring a return on investment and maintaining the competitiveness of organizations and the economy.
Unfortunately, many national organizations and companies fail to protect this asset due to the complexity of software protection and a lack of attention to the matter. In Portugal, the Patent Box regime offers a unique opportunity: up to 85% of the income generated from contracts related to the assignment or use of intellectual property rights can be exempt from taxes. This advantage can make a significant difference for companies investing in innovation. However, this requires appropriately protecting the intellectual property rights associated with the new software.
Intellectual property in software legally protects a code or program against theft, copying, and unauthorized use by its owner. The traditional software distribution model is based on licensing intellectual property rights, mainly copyrights. Open-source software challenges this approach. The copyleft approach goes even further, using copyright to keep it free from restrictions. Software can be protected by combining various intellectual property rights, including copyrights, patents, designs, trademarks, and trade secrets.
Although it is impossible to patent source code in Europe, software can be patented if it demonstrates a technical effect (computer-implemented inventions). This "technical effect" refers to a tangible or measurable result that represents a relevant technical contribution, such as a physical change in cyber-physical systems (e.g., controlling a medical imaging device) or technological improvements (e.g., increased data processing efficiency, resource management, or reliability affecting the operation of a computer or system).
Copyright treats software as a type of literary work consisting of written code. Copyright applies to the source code of a program, not to what the program does when executed on a device. The copyright owner has the exclusive right to use the software for specific purposes, such as reproducing, distributing copies, or communicating it to the public. Associated with software copyright are standard licenses that owners can use to permit or restrict users' actions. Distributing products like Microsoft Office or Adobe Creative Suite largely relies on copyright licensing. Trademarks identify companies and distinguish their products in the market. Although trademarks do not protect the code or the technology, they are vital assets for a company's or product's positioning and communication.
Trademarks identify companies and distinguish their products in the market. Although trademarks do not protect the code itself or the technology, they are vital assets for a company's or product's positioning and communication.
Design registrations protect the appearance or design of a particular product. In software, this can include the visual aspects of interfaces, visual effects, and other distinctive graphic elements. The famous design of Apple's smartphone calculator is an example of this type of protection.
Finally, trade secrets protect programs or parts of programs that are kept secret, have value for the company, and which access is restricted. These include source code, system architecture, software development processes, etc. Trade secrets are beneficial because they protect elements critical to a technology or business model that cannot be protected otherwise. Examples include Netflix's recommendation algorithm and Google's search ranking system.
In summary, software can be protected through a combination of different intellectual property modes, making its protection more complex than other technologies. Therefore, specialized knowledge is necessary to ensure adequate security protection and maximize the return on the investment made by organizations in their development. The CCG/ZGDV Institute, as an entity specialized in software development, understands this challenge and is committed to providing solutions. Our team is prepared to identify, protect, and manage intellectual property at every stage, ensuring that the software developed by CCG/ZGDV and its partners is always protected and monetized.
Author: Telmo Santos - Technology Transfer Manager of CCG/ZGDV Institute
