IP in software: The importance of software protection from a commercial perspective

Deciding when to patent and when to keep your information confidential can be a tricky decision.

It begins with working out the best way to protect your invention. Patents are only one form of intellectual property. Other IP rights may be more effective given your situation and your objectives? To answer this question, you need to decide exactly how you intend to commercialise your innovation and then work backwards to create the right IP strategy.

Adopting a genuinely commercial approach to IP means mapping the goals you’ve set for your business to your IP strategy. Your IP plan and your business plan must never be mutually exclusive!

Given software now plays an enormous part in almost every industry sector, it is now more important than ever to ensure you have done everything you can to capture and protect your innovation in the correct (i.e. the most commercial) way to support your business.

We’d always recommend any business, not just software businesses, adopt a commercial approach to IP from day one. Knowing how you plan to protect and commercialise your software will give you an enormous head start in terms of attracting investment, opening up additional revenue streams, and giving you the tools you need to support a strong exit.


You should apply for a patent, right? That’s what a lot of people say, and so that’s what a lot of people do (or don’t because they find they can’t).

The problem with this way of thinking, though, is that it hives your IP strategy off from the rest of your business. When you don’t tie your IP strategy to the rest of your business strategy, you run the risk of your IP (be that patents or other types of intellectual property) not covering what your business needs, spending money on types of IP that aren’t going to further your commercial goals or - critically - disclosing an important part of your technology that didn’t need to be disclosed to your competitors.

Instead of asking yourself if you should apply for a patent, ask yourself these questions instead:

  • Would a patent application help me get funding or investment?
  • Is there a risk that my invention relates to so-called “excluded subject matter” (such as software for business methods) and, if so, how do I understand that risk better and the consequences for my business plan (this series of articles will help with understanding if that risk is present)?
  • Are you planning your exit strategy, and will the right IP add value to your company?
  • Do I have competitors who I need to prevent from using my ideas?
  • If I patented my invention, could I tell if my competitors were infringing the patent by using the invention?
  • If my invention enters the public domain, could it be copied? Or could I protect my invention with a trade secret or copyright instead?

Depending on the answers (we’d suggest those answers would be no, yes, yes, yes, no, yes), it may be the right time to think about what you need to do to put a more commercially-focused IP strategy together.

If you would like to talk this through with one of the patent attorneys in our dedicated electronics and communications team, please contact us today.