IP Protection for Computer Software: Leveraging Copyright, Trade Secrets, Trademarks, Design and Utility Patents

Evaluating the Protection Options, Weighing the Benefits and Risks

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, August 15, 2017
Recorded event now available

This CLE webinar will provide guidance for IP counsel in determining which form of IP protection is the optimal mode for software. The panel will examine the pros and cons of each avenue for protection and how developers and their counsel can best utilize the IP protection available.


Utility patent protection was thought to be the most effective way to protect software before the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank substantially limited the patentability of software. While some computer-related inventions can be patented, it is challenging, and counsel to software developers are looking to other forms of IP protection to supplement or substitute for the limited utility patent rights that may or may not be available.

Trade secrets are often considered an appropriate alternative to utility patents. The Defend Trade Secrets Act of 2016 has strengthened the ability to protect trade secrets from misappropriation by creating a federal cause of action. But software can be difficult to protect as a trade secret because the code can usually be readily reviewed.

Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, among other categories. However, a Federal Circuit court opinion revived interest in using copyright law to protect computer software. Oracle America Inc. v. Google Inc. (Fed. Cir. 2014) held Google’s copying of the structure, sequence and organization (SSO) of part of its program from Oracle could be copyright infringement.

Developers and their counsel also turn to design patents and trademarks to provide protection for various aspects of software. Counsel must understand the pros and cons of each mode of protection to guide their clients in choosing among options that will best protect the inventions.

Listen as our authoritative panel examines the challenges for software developers and their counsel in protecting computer software. The panel will examine copyrights, trade secrets, trademarks, and design patents. The panel will also discuss the ability to protect software using patents after the Supreme Court’s decision in Alice Corp. The panel will discuss the challenges of each avenue for protection and how developers and their counsel can best utilize the IP protection available.


  1. Challenges in protecting computer software
  2. Leveraging IP protection available
    1. Patents post-Alice Corp.
    2. Copyrights
    3. Trade secrets
    4. Trademarks
    5. Design
  3. Best practices
    1. Choosing between different options for protection
    2. Implications of the choice


The panel will review these and other key issues:

  • What are the hurdles that must be overcome for software to obtain copyright protection? Patent protection?
  • What factors should counsel consider when choosing between the different forms of IP to protect software?
  • What are the pros and cons of each mode of IP protection?


Matthew D. Asbell, Partner
Ladas & Parry, New York

Mr. Asbell assists clients in clearing, obtaining, enforcing, and defending trademark rights in the U.S. and throughout the world. He also provides advice on patents, copyrights, domain names, and other related areas. He frequently collaborates on and authors articles on intellectual property on subjects ranging from social media and domain names to licensing, branding, and information technology. His certifications as a Social Media Strategist and Master Instructor equip him to handle complex intellectual property matters arising in the Web 2.0 space.

Aaron J. Capron, Partner
Finnegan Henderson Farabow Garrett & Dunner, Palo Alto, Calif.

Mr. Capron has a wide range of experience involving post-grant proceedings, patent litigation and patent portfolio management. He has been co-lead counsel for several post-grant proceedings, including one of the first cases instituted under the America Invents Act. Mr. Capron has drafted and overseen the drafting of hundreds of patent applications for electrical, electronics, telecommunications and software-based technologies. Patent portfolios he manages protect a range of technologies, including network virtualization, web content optimization, data aggregation systems and mobile devices.

David Eramian, IP Counsel
Stripe, San Francisco

Dr. Eramian serves as the lead lawyer counseling on the development, acquisition, and protection of intellectual property at Stripe. He manages prosecution and enforcement for Stripe’s global portfolio of trademarks, copyrights, and domains. He also oversees the development of Stripe’s portfolio of utility and design patents, and conducts IP due diligence for Stripe’s M&A activities. Prior to Stripe, Dr. Eramian was Innovation & IP Innovation Counsel for PayPal, and before that, was a patent agent and attorney at a San Francisco-based IP boutique. He is a named inventor on five post-Alice software patents.


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Intellectual Property Law Advisory Board

Stephen R. Baird


Winthrop & Weinstine

Charles S. Baker


Locke Lord

David S. Bloch


Winston & Strawn

Ian N. Feinberg


Feinberg Day Alberti & Thompson

Bassam N. Ibrahim


Buchanan Ingersoll & Rooney

Mark P. Wine



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