Software as a service (SaaS) innovations can be found across a wide range of industries. SaaS is a common application delivery method for business and personal software, whether in customer relationship management, communications and messaging, accounting, payroll and benefits, photography and video processing, gaming, etc. Saas innovation can be protected using any of the IP protection regimes; patents, trade secrets, trademarks, and copyrights.
Like all software patent applications, SaaS patents face an obstacle in the patent eligibility analyses set forth by recent case law. Due to the recent changes in the USPTO analysis of patent eligibility, many software patent applications have recently been rejected as being directed to abstract ideas, which cannot be patented. Common examples of abstract ideas include methods of organizing human activity, mathematical relationships, and “an idea of itself” (such as mental processes that can be performed by a human mind).
Being mindful of the patent eligibility concepts during product development and the patent writing process offers the best chance at obtaining patent protection. Consulting with a patent attorney during the development phases can help identify the aspects of your technology that are most likely to be protectable, or can direct you to protecting your technology through trade secrets instead of patents.
Patent searching can be useful to help you assess both the likelihood of securing patent protection (through a patentability searching opinion) and to help you assess the likelihood of infringing existing patents (through a freedom to operate search and opinion).
If patentable, utility patents are most often used to patent SaaSinventions. Working with a patent attorney that has experience with software can help you quickly focus on the key protectable innovations you have developed and the best strategies for patenting those products.
Trade secrets protect proprietary information that you are able to keep confidential. If not patentable, and sometimes even if patentable, it can be useful to protect the SaaS invention simply by actively protecting the secrecy of the key aspects of the software, the functional algorithms and the like that drive the unique features and functions.
Unlike patent protection, which is limited to 20 years, trade secret protection lasts indefinitely, as long as you take certain steps to maintain the secrecy of the technology. In other words, the trade secret protection lasts until the information is disclosed, unintentionally or not. If the trade secrets embodied in your fintech would be difficult to reverse engineer, it may be preferable to protect them by maintaining them as trade secrets rather than pursuing patent protection. It can be valuable to think through this analysis with an IP attorney to best plan your trade secret protection.
Branding is another avenue for establishing the IP rights in the SaaS. Unlike patent rights, trademark rights do not expire so long as the mark is continuously in use with the associated goods and services and renewal documents are filed periodically. While the patent landscape changes over time due to the constantly evolving state of the art, trademark rights established early on may continue to build and strengthen over time.
Branding raises risks of trademark infringement. Trademark searching is an important tool to assess the infringement risk when bringing the product to market. It is also helpful when establishing a product or brand name to ensure it is distinct and not confusingly similar to other names in the space so it may be registered as a trademark itself.
Copyrights protect original works of authorship fixed in tangible media. In the SaaS space, the original work of authorship is the software code. The tangible media is the memory into which the code is stored. As a result, any original coding done for the software is protected under copyright law.
Although copyright protection is inherent in the code, the copyright can (and should) be registered with the U.S. Copyright Office contemporaneously with the launch of the SaaS to maximize the protection and guard against piracy or other unauthorized use.
Another key consideration for a SaaS product is preparing the appropriate end user license agreement (EULA). A EULA is an important document defining the rights and relationship between you and your customers. A well-drafted EULA covers the terms of the license, the rights and obligations of both parties, the data privacy policies, and more. A EULA can be an important piece in your IP protection, as it it the license agreement between you and your customer. RPL attorneys are available to help you draft your SaaS EULA.
RPL’s attorneys have a strong background in software IP protection, including SaaS innovations. RPL’s managing attorney, Patrick Richards has written, licensed, and enforced software patents his entire career. Since Patrick started RPL in 2009, the software industry has been RPL’s busiest practice with some of its biggest successes.
RPL protects IP for financial institutions and other businesses providing financial services, including trading services, payment processing and more.
RPL works with clients to protect their mobile app IP with strong and enforceable patents, trademarks, copyrights, and trade secrets.
RPL protects wearable technology inventions from smart watches and fitness trackers to innovative clothing and accessories and medical products.