Ask the Expert: NJ Akers

Businesses in all sectors are increasingly engaging in the development of bespoke software and related digital assets to give them a competitive edge, be that through improvements in the efficiency and operation of their own business, or as a marketable digital product.

Consequently, there is considerable value in the intellectual property (IP) rights underpinning digital innovations. It is therefore important for businesses to protect these rights. However, when it comes to software and related media, this can be challenging.

For example, in many jurisdictions including the UK, computer programmes per se are expressly excluded from patentability by law. Furthermore, where the programme functions to improve the operation or running of a business, such methods may themselves be subject to similar exclusions.

Many businesses, deterred by these challenges, instead rely on copyright. It is generally recognised that any original source code underpinning a computer programme is automatically protected as a ‘literary work’ by applicable copyright laws. However, while copyright offers a layer of valuable and necessary protection, it does not go so far as to protect the functionality of the programme.

This can leave businesses vulnerable to exploitation by competitors who might attempt to ‘reverse engineer’ innovative digital products to deliver the same or a similar user experience with differently coded software.

The strategic utilisation of registered design protection can help address some of the limitations of copyright.

A registered design protects the appearance, shape or decoration of the whole or a part of a product and grants the proprietor the exclusive rights to the design for a period of up to 25 years. This includes making, offering, importing, exporting, or otherwise using a product incorporating the design.

While many businesses effectively utilise registered designs to protect physical products, their utility in protecting the visual characteristics of digital assets, including web pages, apps, and other software packages, is often overlooked.

Advantageously, the appearance and layout of digital media including icons, Graphical User Interfaces (GUIs), and dynamic or transient digital content can also be protected by registered design rights. In this manner, the visual interfaces by which users interact with a software product may be protected. These rights can be enforced against competitors to prevent them from using the protected design elements in their own digital products.

By adopting a strategy of protecting the various graphical design elements which together form a digital product, businesses can supplement their rights in the underlying code with a suit of design registrations which together present an additional line of defence against competitors attempting to replicate their products.

Registering a design is also comparatively quick and affordable. A business may therefore develop a portfolio of design registrations to suit its budget. This portfolio can be readily expanded to continue to provide commercially relevant protection.

Our team at N. J. Akers & Co. can help you with both the identification and protection of your IP rights. From brand and design protection to patenting new technologies, we are well placed to help you develop, maintain, and exploit a robust IP portfolio.

Please contact us by phone or email, if you would like to know more.