In my opinion, many IP attorneys are half asleep when it comes to representing software clients. They either apply non-innovative approaches or simply lack the integrated experience to properly advise software clients and new high-tech ventures.
Clients who are seeking the legal advice of a Texas Software Attorney need to secure multifaceted recommendations which cover a variety of complex areas including intellectual property, patents, trade secrets, contract/employment law, litigation, and software business savvy. The inability to receive multilevel legal advice invariably undermines the rendered IP protection, in my opinion. Here a few key points to consider:
1. IP Protection via Copyright Registration.
This is an easy one and almost all Texas Software Attorneys even right out of law school will flag this! The U.S. Copyright Office in Washington, D.C. provides special procedures which govern the registration of software which detail the pages of code required to be uploaded. Critically, the rules allow for the use of redacted code to reduce the likelihood of reverse engineering and safeguard the underlying source code as protected trade secrets. Keep in mind that new copyright registrations are required in tandem with new code iterations.
Also (not usually flagged) – the use of an App by the client typically needs to be trademarked with the USPTO (United States Patent Trademark Office). Protecting software is more than safeguarding code but building a sustainable brand for market recognition.
2. Patent Protection.
This is crucial and not all law firms have access to experienced patent attorneys. The emphasis on the word “experienced” is critical as a patent generalist will not have the background to formulate the claims and IP strategy to not only protect the software but preserve and expand its economic value. The best advice is to seek out patent counsel with degrees in Electrical Engineering and prior experience as a computer programmer. BTW – look no further than the Moster Law Firm!
3. Trade Secret Legal Experience.
I am amazed how few attorneys in Texas are aware of the Texas Uniform Trade Secrets Act or TUTSA. This statute affords software developers with new and augmented protection by independently treating their innovations as trade secrets. To comply with this statute, it is critical that steps be taken to protect the confidentiality of the software by limiting online access and implementation of password safeguards across the board. Our Firm also recommends that all employees execute specially crafted nondisclosure agreements to increase the arsenal of contractual protection. Critically, this statute allows for the issuance of an injunction based on an incredibly low bar (“threatened misappropriation”) versus a typical TRO.
4. Contract/Employment Law.
As discussed above, employees need to execute agreements which prohibit disclosure of the software as trade secrets. Seek out experienced employment lawyers with extensive transactional skills as to the drafting of the language to preserve confidentiality and the use of noncompetition clauses. The point is that anyone who even touches or glances at the code must be contractually restrained, or all bets are off. The software industry is replete with IP theft given the economic value of new innovations.
5. Litigation experience.
This is critical. IP protections are useless if the law firm cannot load up and metaphorically fire. If any misappropriation is suspected, the law firm should not delay as time is of the essence. Our recommendation is to get an injunction even before a cease-and-desist letter goes out. If you do not act fast, you lose big.
6. IP Business Savvy.
Most law firms are clueless as to the business implications of software as they entertain the old-fashioned modality that business issues are distinct from legal. Well, think again! An IP Firm cannot advise unless it understands the software business model and how the product can be marketed and distributed. Clients benefit tremendously from this advice as it is obviously interrelated with the underlying legal advice.
Choose your Texas Software Attorney with the greatest of care. Without the benefit of multileveled legal advice, your software IP rights can easily be compromised.