Intellectual property protections for embedded software: A primer

July 23, 2013

Michael.Barr-July 23, 2013

My experiences as a testifying expert witness in numerous lawsuits involving software and source code have taught me a thing or two about the various intellectual property protections that are available to the creators of software. These are areas of the law that you, as an embedded software engineer, should probably know at least a little about. Hence, this primer.

Broadly speaking, software is protectable under three areas of intellectual property law:

  • patent law,
  • copyright law, and
  • trade secret law.
Each of these areas of the law protects your software in a different way and you may choose to rely on none, some, or all three such protections. (The name of your product may also be protectable by trademark law, although that has nothing specifically to do with software.)

Embedded software and patent law
Patent law can be used to protect one or more innovative IDEAS that your product uses to get the job done. If you successfully patent a mathematical algorithm specific to your product domain (such as an algorithm for detecting or handling a specific arrhythmia used in your pacemaker) then you own a (time-limited) monopoly on that idea. If you believe another company is using the same algorithm in their product then you have the right to bring an infringement suit (such as in the ITC or U.S. District Court).

In the process of such a suit, the competitor’s schematics, source code, and design documents will generally be made available to independent expert witnesses (i.e., not to you directly). The expert(s) will then spend time reviewing the competitor’s source code to determine if one or more of the claims of the asserted patent(s) is infringed. It is a useful analogy to think of the claims of a patent as a description of the boundaries of real property and of infringement of the patent as trespassing.

Patents protect ideas regardless of how they are expressed. For example, you may have heard about (purely) "software patents" being new and somewhat controversial. However, the patents that protect most embedded systems typically cover a combination of at least electronics and software. Patent protection is typically broad enough to cover purely hardware, purely software, as well as hardware-software. Thus the protection can span a range of hardware vs. software decompositions and provides protection within software even when the programming languages and/or function and variable names differ.

To apply for a patent on your work you must file certain paperwork with and pay registration fees to the U.S. Patent and Trademark Office. This process generally begins with a prior art search conducted by an attorney and takes at least several years to complete. You should expect the total cost (not including your own time), per patent, to be measured in the tens of thousands of dollars.


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