IP Protection for Software
If the profitability of your business depends on direct sales of software, or indirect use of proprietary software to generate revenue, then an understanding of the Intellectual Property landscape for software is essential.
This guide will look at the nature of software IP in the UK, along with the associated challenges that can arise due to the unique nature of protecting intangible digital assets.
By the end of this article, you should have a clear answer to the key question: “How can Intellectual Property protect software?”
How IP can Protect Software under UK Law
Software can qualify for a number of different forms of IP according to UK law. For example, software can be protected by copyright, trade secrets, and in some cases by a patent. Computer-generated images or interfaces may be protected by design rights. The suitability of any one form of IP over another will depend on the nature and purpose of the software, as well as whether or not it has been disclosed to the public.
The Main Types of IP Protection for Software in the UK
The decision to choose any one form of IP over another will depend on your overall business, and IP strategy. Different forms of IP can exist in parallel, and some do not have a requirement to be registered to be enforceable. As experts in all forms of IP, Bailey Walsh & Co can help you develop that strategy and maximise its outcomes. To learn more about patent strategies, visit our previous blog [A Guide to Developing a Patent Strategy for Your Business], or get in touch.
Software Copyright Protection
Software can qualify for copyright protection as a literary work according to part 1, section 3 of the Copyright, Designs and Patents Act 1988 which defines that a “computer program” and “preparatory design material for a computer program” both classify as a copyright work. Copyright protection and the right to enforce that protection arises automatically and without the need of registration once the software and/or preparatory work is recorded in writing or another suitable form.
Given that copyright arises automatically, it is essential to record software and preparatory work so that the protection is awarded to the proper owner. This includes keeping written records of preparatory designs, flowcharts, logic maps, object code and source code. This can be in digital form, but it is important that you keep a permanent copy with proof of the date on which it was created. You should make it routine to record the necessary evidence throughout the development process. This can include implementing version control systems with date and time stamps for each new update or novel innovation.
As with all forms of IP, it can be useful to assert your copyright protection such as by including a copyright notice to ensure that anyone using it is aware that it is a protected work
Software Trade Secret Protection
Trade secrets act as a form of IP wherein the invention is a secret and not disclosed to the public. Under the Trade Secrets (Enforcement, etc.) Regulations 2018, information qualifies as a trade secret if it:
- Is ‘secret’ i.e. not generally known among people in the field.
- Has commercial value because it is kept secret.
- Reasonable steps have been taken to keep it secret.
Software can qualify for trade secret protection, even if it has been used by the public, provided that the algorithms and backend processes by which the software operates have not been disclosed to the public.
Software Patent Protection
Patent protection provides the proprietor of the patent an exclusive right to work on their invention and can be used to prevent others from performing acts in relation to the product or process protected by the patent in a given jurisdiction. Patent protection can be relevant to software, but there are some caveats that apply.
Programs for computers as such fall within the exclusion to patentability under UK law, however there are routes to obtaining patent protection for software related inventions
For example, patent protection may be possible for a method which is executed by a software, provided that the outcome of the method has a technical solution to an existing problem. Recent changes to UK patent law have led to an adoption of the European approach to the patentability of computer programs in that a computer program can be classified as an invention if there is any hardware present to implement the invention. The implications of this evolution in UK law have not yet been fully realised through the UK examination system but will undoubtably lower the barrier for software to classify as an invention. To learn more about the precent changes to UK Law, read our blog on the recent Supreme Court judgement coming soon.
Provided that the software-related invention does not fall into the “computer programme as such” exclusion, the software must also meet the further requirements of novelty, inventive step and has industrial applicability.
The Challenges with Software IP
A comprehensive understanding of how to protect software IP includes a good knowledge of some of the challenges associated with certain IP for software. Bailey Walsh & Co can help you to evaluate these challenges to map out the most suitable forms of IP protection for your software.
Conclusion
Like many other works, software can be entitled to various forms of IP, and in some cases different forms of IP concurrently. This creates a complex landscape for UK software developers to navigate. With professional advice from Bailey Walsh, we can develop your IP strategy according to your needs to ensure that your computer programs are protected by copyright, patents and/or trade secrets as appropriate.
FAQs About Software IP Protection
Does copyright apply to computer programs?
Yes – computer programs and in particular the underlying code are deemed ‘literary works’ in UK legislation. This means they can be protected by copyright under the CDP Act 1988.
Can I patent software in the UK?
Potentially – whilst computer programs as such are excluded from patent protection, software related inventions may be eligible. Like any patent application, your software must meet certain criteria. It must be an invention that is novel, inventive and has industrial application. Since February 2026, the assessment of whether a software invention qualifies for patent protection has changed following a Supreme Court ruling.
Is my software a trade secret?
If you have not publicly disclosed the existence of your software, it may constitute a trade secret. This does not prevent competitors from independently developing a computer program with the same overall function, and ‘trade secret’ status may be removed by accidental or unauthorised disclosure.
