Protecting Software in the Face of an Ever-Changing Workforce

By on March 26, 2019

Executive Summary of an article written by
Mark P. Kesslen, Lowenstein Sandler

What can organizations do to prevent proprietary software from going AWOL and unwanted outside technology from walking through the door uninvited? To counter these risks, reevaluate and update existing employment agreements and trade secret policies, develop a copyright registration process (which is an evolving best practice), and reassess patent filing strategies to address the challenges created by the mobile and ever-changing workforce. This also provides you an opportunity to introduce an open source code policy to ensure that wrongly introduced code does not virally impact the value of your source code.

A robust non-disclosure and invention assignment agreement (NDIAA) ensures that ownership of all developed work product, including associated intellectual property rights, is assigned to the company and protects the company’s confidential and trade secret information and data.

A best practice being adopted at many tech companies is to file for copyright registration for developed code. This grants the owner the ability to immediately seek injunctive relief in federal court. It creates a record of ownership and evidence of validity and protects the literal and nonliteral elements of the code against an exact copy and works that are substantially similar. In making a decision to file for patent protection on technology, the detectability of the software must be assessed. If it is easily or somewhat detectable, pursue a patent. Licensing of open source software is also a concern. The two types of licenses available are permissive and copyleft.

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