Can a new idea for a software project be an intellectual property?

Question

I have to do my final year project and I am going to do some kind of stuff that no one has yet attempted to do, though the completion of the project involves some things that have already been done but I am extending those ideas to do something that no one has yet done.

In simple words I have an idea that needs combination of two ideas plus something from my own.(The idea is actually to do something that had always been done by humans and for the first time a software will be used for the purpose)

Can I claim this idea to be an intellectual property of mine so that no one else attempts to do it while I am doing the project?If Anybody does it after my project, will he need a license from me?

Answer 1

For software, there are two main ways of claiming intellectual property. Firstly, your work would automatically be covered by copyright. However, that will not protect the essential idea in your project. Anybody else could re-implement the idea on their own and sidestep your copyright.

Alternatively, to protect the main idea itself, you could attempt to patent its implementation, which seems to be what you're thinking. From what you've disclosed here, there is no way to advise whether it would be patentable. But you certainly can try.

However... Getting a patent is a costly, lengthy and difficult process, especially for a student. Moreover, it can take many years for a patent to issue -- if it does at all -- and until then you cannot (usually) enforce it to keep others from doing the same thing. Your project will likely be long done by then, so you probably would not be able to prevent others from doing it while you're working on the project. You could tell everyone that it is "patent-pending" and hope that is enough discourage competitors.

After it issues, on the other hand, you can try to enforce it or license it.

However... Understand that nobody is automatically obligated to come to you for a license. You will have to find them, approach them, and get them to either license or cease & desist.

That, again, is a very complicated proposition...

1. Your claims, as allowed, might not cover the other's work because they do it differently.
2. The market for the invention, or of the infringing products, may be very small, and the value of the license may be low.
3. Even if it is actually infringed, the infringer may not wish to license it from you, and your only option at that time would be a lawsuit, an even more mind-bogglingly costly, lengthy and difficult prospect, for which you may need to turn to a "patent assertion entity."

However... You could choose to bring the invention to market yourself, and having a patent does help in securing investments and VC funding. The coverage of the claims and infringement potential would not be a huge concern in that case.

Alternatively, if you do get good claims, and products with high market value do infringe it, and you do get good representation, and do get it licensed, you could make decent money off it.

I may sound discouraging, but there are a lot of common misconceptions about what patents really cover, and the ease of securing and licensing patents. What I'm saying is, a patent may be a good option, but think it through carefully, and only go for it if you really think it's going to be worth it.

Answer 2

There are two forms of intellectual property that might apply here: patents and copyright. Patents can cover the idea but require considerable effort to get. Copyright is automatic but does not cover the idea, only the software itself.

A patent covers a specific method to accomplish a certain practical result. If your idea leads to some new practical realization, you can apply for a patent; this gives you an exclusive right to use the specific method for the specified purpose for a few years. New is called “no prior art”: it means that no one has ever done it that way before (except perhaps in private), or publicly described how to do it (even if they merely described the method but never wrote the software, that's prior art), or filed a patent about it. Getting a patent requires a substantial initial effort and expense (see e.g. Is it practical for a novice to successfully file a patent without hiring a patent lawyer?). It is not automatic. If you publish your work, you can no longer patent it (except in a few countries, including the Unites States, where you have a 1 year grace period to file a patent). Your project defense or report would count as a public disclosure unless you take care to require a confidentiality agreement from all the people who have access to your report (some schools might be accommodating).

Copyright applies to works of literature, art and other original creations. Software is subject to copyright. Copyright is automatic: as soon as you create the work, you hold the copyright on it. You do not need to apply for or file anything (though in some jurisdiction filing increases the damages you can claim if someone breaches your copyright). Copyright only covers the software or works derived from that software. Someone else may look at how your software works and write their own code that implements the same idea, or they might have the same idea independently; you do not have a monopoly on the idea.

Another way you might try to benefit from your idea is by keeping it secret, and making people pay to use the software or to obtain a description of the idea. Under trade secret regulations, you do get some protection from the law if someone divulges your secret while under an agreement not to do so. If you accidentally release some information, or if someone else independently discovers the idea, you do not have any protection.

It is fairly rare that a “final year project” leads to an idea that is so valuable that it is worthwhile going to the expense of protecting it. Do consult your educational institution: they might have in-house legal help, or conversely they might require you to publish your work in order to get your degree. They might also lay claim to some part of any benefit you get from the idea, as that idea might have been partly due to your advisor or other professors or mentors.