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Can a business method be protected with copyrights?

Broomfield, CO |

I am looking into a new business idea, but I am concerned about how to protect it. I

have come up with an alternative way for a specific business type to conduct business. This new approach would require businesses in this sector to formulate contracts with their clientele in a non-traditional manner.

If I add skeleton contracts (showing this new method) to copy written software, would I be protected from others using the same basis for contracts?

If not how can this be protected?

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Attorney answers 5

Posted

A patent(s) is likely your only basis for protection (assuming the invention is patentable) It doesn't sound like your invention relies on a novel software platform, so it may not qualify as patentable subject matter. You should consult with an IP attorney, however, to fully evaluate the facts.

Bruce E. Burdick

Bruce E. Burdick

Posted

So, trade secrecy agreements and trademarks are not available? Hmmm Microsoft will be sad to learn that a patent is the only basis for protection since they primarily use trade secrecy and trademarks.

Richard T Matthews

Richard T Matthews

Posted

Depends upon the "business idea," but that is why I responded that a patent is "likely" the only basis for protection. What's your basis in stating that Microsoft "primarily use[s] trade secrecy and trademarks"?

Posted

A patent is probably the correct way to protect yourself here, although copyright could play a role. For example, if you are generating full contracts based on template contracts in some specific area, you could (and would) claim copyright in the template contracts, as well as any finished contracts that your process generated. I note that such protection would be limited in scope to contracts that were substantially similar to the template / generated contracts.

Good luck!

This answer is not a substitute for professional legal advice. This answer does not create an attorney-client relationship, nor is it a solicitation to offer legal advice. If you ignore this warning and convey confidential information in a private message or comment, there is no duty to keep that information confidential or forego representation adverse to your interests. Seek the advice of a licensed attorney in the appropriate jurisdiction before taking any action that may affect your rights. If you believe you have a claim against someone, consult an attorney immediately, otherwise there is a risk that the time allotted to bring your claim may expire.

Bruce E. Burdick

Bruce E. Burdick

Posted

Don't ignore trade secrecy and trademarks, Microsoft doesn't. Adobe doesn't. Nuance doesn't. Apple doesn't.

Konrad V. Sherinian

Konrad V. Sherinian

Posted

Good point (as always) Bruce.

Posted

Not can, WILL. Copyright protection subsists upon creation of an original work of authorship fixed ed in any tangible form of expression. 17 USC 102. You will want to register that copyright protection and should retain copyright counsel to do that so it is done efficiently and properly.

However, you are ignoring three other forms of intellectual property protection that are likely to be more effective for you, patent protection, trade secrecy agreements and trademark registration. That tells me you need to see an IP attorney so you learn about them and use them properly so you are fully protected.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Posted

You are asking the right question, but before any lawyer could give you definitive advice, you would need to provide much more information. One of the primary jobs of intellectual property counsel is to assist clients in developing effective strategies for protecting their intellectual property rights. Depending on your business method and the nature of the "skeleton contracts" and software involved, you may use a combination of patent law, copyright law, trademark law, trade secret law, and contract (licensing) law to protect yourself. Note that in developing a strategy, you and your counsel need to conduct a cost-benefit analysis----patents may provide solid protection, but they are very expensive to get, and unless you have a multi-million dollar war chest for litigation, your patent rights may not help you very much. Further, business method patents are scrutinized extremely carefully and there is a good chance that your business method would not be patentable. It is often more productive to pursue a less costly approach to IP protection, involving primarily copyright and trademark law.

Of equal importance, before moving forward with a project like this, you need a "clearance opinion" to make sure you can proceed with this project without violating intellectual property rights of others. Indeed, this clearance opinion is probably your first priority---the question you need to ask first is whether there are obstacles in the world of patents, copyrights and trade secrets that might prevent you from pursuing this project. If so, then you might not want to invest thousands of dollars in acquiring IP rights for a business project that you cannot commercialize.

Finally, you need to be realistic about money. You need a substantial budget for intellectual property counsel. Laying the proper legal foundation for a business like this cannot be done inexpensively. If you cut corners on laying the proper legal foundation, you will likely regret this in the years to come. One of the primary reasons that small businesses fail is failure to expend sufficient resources to develop their intellectual property strategies--- far too many entrepreneurs think they can do their thing and embrace the creative spirit without dealing with grouchy, pessimistic lawyers. You will find that your grouchy, pessimistic lawyer is often your best friend because he or she will save you from financially disastrous mistakes.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Avvo should have a 0 to 5 scale that allows attorneys to grade other attorney's responses. This is a 5.

Maurice N Ross

Maurice N Ross

Posted

Thank you Daniel. Your answers always deserve a 5.

Posted

There are several ways in which you could potentially protect any intellectual property rights that may exist, including copyright, trademark, trade secret and potentially patent -- although I see patent as the least likely. However, any such determination cannot be made until you meet with counsel, discuss what you are doing in detail, and jointly determine the best route to your intellectual property protection. If you are interested in discussing the same, I am located just several miles from you in Louisville, CO. My office number is 303-665-9845.

Best of luck.

The information that is placed in this response is for informational purposes only and does not create an attorney-client relationship with Thomas P. Howard, Esq., nor is it intended to be relied upon as a replacement for legal advice from an attorney.