We continue our series on how intellectual property can protect additive-manufacturing products and processes.
Protecting Functional Features of the RAPIDFORK™ Product
The functional features of the RAPIDFORK™ product can be protected by a utility patent or through trade-secret protection. Utility patents protect new or improved machines, products, processes and compositions of matter. See 35 U.S.C. § 101. Trade-secret protection protects information that companies keep secret to give them an advantage over their competitors. See http://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm. In theory, both forms of protection could be used to protect a fork design.
In most cases, utility patent protection is more desirable than trade-secret protection for articles of manufacture, like motorcycle forks, because utility patent protection can protect such items from being reverse engineered. Trade-secret protection would only be appropriate for such items when those items are not displayed or used in public. As a result, the motorcycle racing team would most likely seek patent protection for its new design.
Protecting the Software
The motorcycle racing team may decide to use IP to protect the computer software that was used to create the fork. Computer software can be protected using utility patents, trade secrets or copyrights.
Some computer software is eligible for utility patent protection. The software must be useful, novel and nonobvious to be eligible for utility patent protection. In many cases, the software must meet criteria set forth in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014), to demonstrate that the software is not abstract.
If the motorcycle racing team (or its lawyers) determines that patent protection is not appropriate, the team might consider trade-secret protection. Trade-secret protection would be appropriate if the software was only used in secret on the premises of the motorcycle racing team. It would be even more appropriate if the motorcycle team had the ability to limit access to the system upon which the software ran, to keep a log of those who had access to the software and to take other similar measures to protect the software or the system.
Copyright protection would be the least desirable form of protection for the software in most cases because it would be necessary to deposit a copy of the software with the USCO. See 17 U.S.C. § 407(a). The deposited copy would be available for public inspection.
More next time.