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I have an idea that I would like to pitch to a software partner that I currently work with. What is the best approach to protect my idea? I'm not sure if I can patent it since it's s concept and not sure if copyright provided coverage.

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Patents and copyright in the context of software cover different aspects of your product. You would want to consider both. Since this very much turns precisely on your idea, you really ought to go see an attorney.

A patent covers the inventive concept. That is, you can obtain a patent if you have an invention which is novel and non-obvious (and patent-eligible, which is a particular difficulty with software patents). Once you have a patent, you can prevent someone else from using the patented concept.

Copyright covers the precise code that you use, regardless of whether it's novel. That is, as soon as you write a piece of code, it is protected by copyright (as long as it's original etc): there is no need to apply. You can then prevent others from copying your code. However, they would be free to write their own, different code, even if it did the same thing.

  • Is this true of any code I write? If so, why couldn't some sadistic tutorial writer copyright a function they wrote and published on StackOverflow or Github and start suing people? – frank Jun 8 '18 at 23:54
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Without having specific details, my sense is you can't protect your idea. In the past, it was possible to patent purely abstract ideas such as "a computing device that is mobile" but this led to widespread patent abuse, and changes in the guidelines and eligibility standards.

However, if your idea is specific, meaning a new method of doing something with software, ideally which improves the function of the hardware, you should strongly consider filing a provisional patent application.

A provisional application would give you protection should you subsequently decide to file a nonprovisional application, and allow you to disclose the idea.

As Maca has suggested, you should definitely seek a consultation with a patent and copyright attorney. In my experience, most IP attorneys are happy to do a free consultation. (I'd even advise speaking to multiple attorneys before making a decision to engage, if that is the path you ultimately take.)


NOTE: Depending on the region(s) you are potentially targeting for future nonprovisional applications, be aware that there are differences related to grace period after disclosure. The provisional won't be a matter of public record, put if you pitch the idea without a non-disclosure agreement, that almost certainly constitutes public disclosure. Grace period in the US is 1 year from disclosure.

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