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Reassessing Options for Protecting IP Rights in Software Systems in the Wake of the Alice Decision

Last summer, the U.S. Supreme Court issued a decision in the case Alice v. CLS Corp that has significantly changed the landscape with respect to the availability of patent protection for software systems. In light of that shift, any company that derives significant value from its proprietary software should now re-evaluate the different options for protecting that value, even if the company has previously obtained patent protection for its software.

Under the Alice decision, patents that consist largely of taking a known business process and adding, in effect, the idea to “do it on a computer” are not patentable. As a result of this decision, which the lower courts have interpreted quite broadly, it will now be much harder to obtain or enforce patent protection for a software system. If you have been issued a software patent or were in the process of or contemplating applying for one, you should contact us to help determine the extent to which it may be subject to challenge under the Alice decision and other ways to protect your intellectual property.

In that regard it is particularly important to consider the potential value of copyright protection. While copyright protection generally protects only the actual program code, the limited right to create derivative works can, in practice provide broader protection in some circumstances. Further, while the protection of the “look and feel” of programs is limited, registering the copyright in the screen layouts of your software may also prove valuable. One further advantage of seeking copyright protection is that it is generally less expensive to obtain as it involves a smaller amount of attorney time.

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