• Software and Business Methods patents
• Trade Secrets • Copyright Registration Timely Tips: A trade secret is any secret information that gives you a competitive advantage. Trade secrets are protected by Texas and Federal law, but to enforce your rights, you may be required to show that you recognized the information as a trade secret and acted accordingly. Steps you should take include:
· Limit access to trade secret documents. · Label trade secret documents and drawings as confidential and proprietary. · Modify the employee handbook to include warnings about misuse of trade secrets. · Modify non-compete and non-disclosure agreements to address trade secrets. · Educate your engineering, R&D, marketing and sales staff on the proper handling of trade secrets.
Why register a copyright? Copyrights arise automatically, so why bother with registration?
· Registration within 5 years of creation is prima facie evidence in court that your copyright is valid. · Registration is inexpensive – see Copyright Office fees Only infringement that occurs after you register entitles you to collect attorney’s fees in a lawsuit. | In re Bilski:
The court instead, reiterated the Supreme Court ruling that business methods and software must meet the “machine” or “transformation” test. If the invention is tied to a particular machine (not just a general purpose computer) or if it transforms a particular article into a different state or thing, then it is proper subject matter for a patent. This certainly means that firmware for a specific controller would qualify, as would software that guides a saw to convert trees into lumber. The court did say that a method or software that transforms data could qualify as long as the data represented specific physical objects. So a method of inverting a matrix most likely would fail the test, but that same method used for structural analysis of a steel building might be considered proper subject matter for a patent.
Of course, being proper subject matter is just one of many hurdles – the invention must still be novel, non-obvious and useful.
Copyright © Robert F. Gilbert 2008
Robert F. Gilbert, Attorney at Law 10100 Kleckley #15-B Houston, TX 77075 (713) 378-9645 (713) 341-9062 (fax) (281) 389- 2542 (cell) |