Patent for Technical Solution

弁理士

Getting a patent is probably your best bet - either way you go - launching your own service or selling the patent to a large company. Either way, if you obtain the patent, you have valuable intellectual property rights.

弁護士

Hello, you can also choose not to patent your software for not expressly disclose its characteristics and keep them secret.

1 / The rights of your software will be protected by trade secret and if you start marketing your service, you can normally take advantage of a right of exploitation by yourself or by selling it via an assignment protected by a confidentiality clause.

However, the protection by secrecy has its limits because malicious competitors may be tempted to reproduce the contents of your source code (see my answer to a similar question dated from 25 September 2015). The question concern, especially, the protection of parts of the source code of your computer program which are not disclosed to the public and therefore secret (because no patented and claimed), whose user needs to make it work - for example, for purposes of implementation of interfaces, read files formats, share files between different architectures, correct errors ("debugging") etc ... - in the light of that it is called the "reverse engineering" (or the "disassembly"). We know that the object code, which is accessible to the user, is usually enough to use and run software on a computer. However, only certain information that is contained in the source code that are not accessible via the GUI of the computer program - and therefore secret - are absolutely essential and must necessarily be analyzed to be « recovered » and then « migrate » from a software to another and allow what is called « interoperability ». While it is always possible to get such information from the object code without the need to transform it (e.g. using analysis methods as tracing line consisting of examining step by step the results of the running of the software), to reconstruct the source code. But in reality, we must conduct a comprehensive analysis of relevant software to achieve this result, which presupposes a « decompiling » (reverse ingineering).

The question then arises - and is a constant source of controversy among specialists – is how far the reverse engineering can go without affecting hidden information the source code that is only protected by trade secret and without becoming illegal. And what are the parades. The laws, as you know, depend on countries that enact them. But the principle of the matter is the same everywhere: only decompilation information necessary to create interoperable software ("fair use") that are not available by the duly authorized user to use the software (through a particular license) is allowed or tolerated. And the use and disclosure of interfaces obtained by decompilation are only permitted for the development, maintenance and use of other interoperable computer programs created independently. In this case, one can venture to say that the decompilation, which would be made by a third competitor without your permission remains lawful because it allows only ensure data exchange with competing software.

In any case, we can say that the transmission of data to third parties and the restoration of the functioning of a computer, for commercial purposes, obtained by decompilation and which are not necessary for the use of software, without your authorization as regular owner of the sofware, are perfectly illegal in that they go beyond the single product analysis. And thus the commercial exploitation of these data and similar software on these bases is necessarily objectionable in that it discloses a secret illegally obtained.

2 / You should also know that your software solution and related technical documents, shall be presumed protected by copyright in all the countries of Latin Roman tradition (subject to originality) without having to perform recording itself from a state office or interstate. Simply, it will be necessary to take certain precautions. In France for example, you can make a file with a specialized private agency "Agency for Protection Programs" (APP) to secure your source code regarding prior art and ownership.

3 / In practice this means that several routes are then offered to you, depending on the applicable law and the opportunities that present themselves to you:

• Tort way:

• a copyright infringement action (the software is protected by copyright in Latin Roman countries like France and most European countries). These actions may, however, be difficult because it is not always easy to identify the parts of the source code that are really protected by copyright,

• an action for unfair and/or parasitic competition against your malicious competitor provided to establish its civil wrong, the reality of the damage and the existence of a link between the fault and the damage.

• Criminal proceedings: criminal responsibility commitment to the said competitor (in some countries like France for example, the disclosure of a trade secret is criminally punishable), subject to establish its fraudulent intention (intention of the said third to harm "A").

So you can see that, as the case, different legal actions are possible to try to protect the information in the source codes that was kept secret and is disclosed by a third party without your authorization, even if you have not patented your software or independently of its patent protection.

Technical parades are also possible as the use of cryptographic techniques to make reverse engineering more difficult, but they are not infallible …

I remain at your disposal should you want to continue this discussion and determine the most appropriate solution and consider with me the best solution to implement.

Sincerely yours,
Simon