United States: Protecting Computer Software Without Revealing Trade Secrets

Both patents and copyright registrations are available for computer software in the United States. Although patents usually provide stronger rights, they are much more costly and protracted than copyrights. Patent law requires full disclosure of the best mode of carrying out the invention as it was contemplated by the inventor. In contrast, copyright registrations are available for software where the owner prefers aspects of the software to remain secret.

Copyright protection in the United States extends to all copyrightable expression embodied in a tangible form in the computer program, but is not generally available for ideas, program logic, algorithms, systems, methods, concepts or layouts. Copyrights provide exclusive rights to publish, reproduce, distribute, sell, license, make derivative works, perform, or otherwise exploit the copyrighted work. Unlike patents, they only provide protection from copying, not independent creation.

In many countries including the United States, copyright protection is now automatic when a work is created in a tangible form. These rights are enhanced via use of copyright notice and federal registration. An owner should mark the work with a copyright notice that includes ©, year, and owner. Registration of a copyright, although not required, is strongly recommended. Copyright registration in the United States should take place within three months after first publication of the work to provide the full range of remedies under copyright law.

A U.S. application for registration of a computer program containing trade secrets must include a cover letter to the Register of Copyrights stating the nature of the application, along with the page containing the copyright notice, if any, and a deposit of the program to be registered. There are several different options for the deposited program having the trade secret portion blocked out.

The first 25 and last 25 pages (or all pages if less than 50 pages in length) of source code with the portions containing trade secrets blocked out.

The first and last 10 pages of source code alone can be submitted if they do not contain any blocked out portions. This is ideal when the trade secrets are contained in the middle of a long program.

The first and last 25 pages of object code plus any 10 or more consecutive pages of source code, without any blocked out portions can be submitted.

Wherever portions are blocked out, the blocked out portions must be proportionately less than the material remaining, and the remaining visible portion must represent an appreciable amount of original computer code. Thus, the owner of the program can obtain a copyright registration without revealing any trade secrets that are contained in the program.