With technological advances in fields such as AI, quantum computing, and computational chemistry, one intangible asset is emerging as highly relevant: software. But what exactly is software? This is a key question when it comes to understanding how this valuable intangible can be protected, because depending on how it is defined, it may fall under different forms of protection.
The term software can be ambiguous and misleading. On the one hand, it can be understood as a set of instructions written in a programming language to implement an algorithm, binary code, or something similar. In this case, protection would fall under copyright or trade secret law.
However, if software is conceived as a computer-implemented invention, the perspective changes. This concept refers to an invention that, for its implementation, requires a computer, where one or more features are carried out wholly or partially by means of a computer program. Here, patents could be the appropriate form of protection.
Software as Source Code
In this first case, we can consider software as computer programs that implement methods for managing mathematical activities, for example. Here, we find various elements, such as source code or executables, in addition to others with business value, such as functional requirements, data, or maintenance methodologies.
All these elements are eligible for protection as trade secrets or know-how, provided they deliver competitive advantages to their holder and appropriate precautions have been taken to keep them confidential.
Moreover, Spain’s Intellectual Property Law (Royal Decree 1/1996, of April 12) establishes that computer programs are protected by intellectual property rights. Therefore, elements such as source code or technical documentation are considered works protected by copyright. While registration is not mandatory, it is highly advisable as solid evidence of existence. It may also be wise to use a qualified timestamp as an additional protective measure.
Software as an Invention
In cases where software qualifies as a computer-implemented invention, and provided it meets the requirements of patentability (novelty, inventive step, and industrial applicability) and has technical character, a patent would be the appropriate protection tool.
At this point, it is crucial to understand in depth what it means to have technical character. The invention—in this case, the software—must provide a technical solution to a technical problem. This could mean improving the functioning of a computer by optimizing computational resources, enhancing the control or efficiency of an industrial process, or improving communication between two mobile phones.
Although not very common so far, fields such as quantum computing and computational chemistry are fertile ground for this type of technical software. And let’s not forget artificial intelligence, which is becoming indispensable in our daily lives. Inventions in this area that are computer-implemented may be patentable. Furthermore, in this context, various aspects such as algorithms or learning models can also be protected.
Conclusions: Key Aspects to Consider
Protecting such a valuable intangible as software is an essential step in any strategy for generating and safeguarding value. It is necessary to first identify what type of software it is, in order to decide the best course of action. Depending on its nature, as we have seen, different forms of protection may apply. It is also important to carefully assess other aspects, such as the possible use of Open Source licenses and the obligations they entail. Technical protection measures, such as code obfuscation, are also worth considering.
If you are working on software and want to know everything necessary to protect it in the best possible way, get in touch with us and we will study it in detail. Proper software protection will be key to creating a successful project.
