Patent your own Software

Are you a programmer and have programmed your own software using flutter app templates and you are now wondering how you can (leave) it? Is there a patent for software? Who is entitled to the software if it was created for the employer? What if open source elements have been implemented?

Various ways to protect software

Self-programmed software is intellectual property. This is protected by various laws. Thus, copyright protection is considered. In some cases, a patent for the software is possible. In addition, software can be protected by trademark and competition law. Last but not least, protection by means of contracts with licensees is also conceivable.

Copyright protection

Section 2 (1) No. 1 copyright law (UrhG) stipulates that computer programs may be protected works within the meaning of copyright. The prerequisite for this is that these are “personal spiritual creations”, Section 2 (2) of the UrhG. This means that a work must have a certain form. The mere idea of a program is not protected. It must also be a “creation”. This ensures that not every small programming immediately gains copyright protection.

Everything that is not trivial is protected.

The bar is thus set relatively low (so-called “small coin”). For example, in object-oriented programming, individual classes can already enjoy copyright protection. The great advantage of copyright protection is that it arises “automatically” (and accordingly free of charge) and does not have to be applied for first.

However, employees should be careful in the context in which they develop their own software. Paragraph 69 b of the UrhG provides that a computer program created by an employee in the performance of his duties or in accordance with the instructions of his employer is available for the sole economic exploitation of the employer. However, different items can be agreed in the employment contract.

Protection by patent law

In contrast to copyright, a patent is created through a formal application procedure, for example at the German Patent and Trademark Office (DPMA). This involves a considerable effort. In addition, the application for a patent is subject to a fee.

The subject-matter of protection is also different in the case of patents than in the case of copyright. All patents for inventions in the field of technology are granted, provided that they are new, are based on an inventive step and should be industrially applicable. “Programs for data processing equipment”.

Programming as such cannot therefore be patented. A computer program is at most patentable if it provides a technical contribution to the state of the art as a whole. This is the case if the software triggers a technical effect or directly controls data processing hardware.

Protection by trademark law

A simpler and more pragmatic way is to register a trade mark. This also costs money. However, registration is achieved relatively quickly and easily. In particular, the application for registration should be well thought out as to which goods or services the trade mark is to be registered for. In addition, there must be no absolute obstacles to protection (Section 8 of the Trademark Act). Before registering the trade mark, it is essential to carry out a trade mark search in order to check whether the registration may infringe existing trade marks.

In addition to trademark registration, the use of a software name may already give rise to a work title protection within the meaning of Section 5 (3) of the Trademark Act. The protection of the title of the works creates similar claims as in the case of a registered trademark (in particular omission and damages).

Protection through contractual design

All of the above protection mechanisms are in place without the software developer and the violator being in a contractual relationship. The developer (with the exception of the UWG claims) has so-called absolute rights, i.e. rights that can be asserted against anyone.

When distributing software, of course, it is also possible to include in the license agreements conditions, which are intended to protect the developer. These are usually accompanied by contractual penalties in the event of an infringement. When formulating such regulations, it is important to keep an eye on the general terms and conditions as this sometimes sets very narrow limits with regard to the admissibility of individual clauses. A GTC already exists if a pre-formulated clause is to be used several times by the user.