Hidden in Plain Sight

21 Pages Posted: 11 Apr 2016 Last revised: 7 May 2016

Michael Risch

Villanova University Charles Widger School of Law

Date Written: April 8, 2016

Abstract

Software developers have long tried to appropriate the value of visible features and functions of their programs. Historically, they used copyright to do so, but then shifted to patenting as copyright protection for methods of operation waned. Given newfound difficulties patenting software functions, developers have one more place to turn: trade secrets.

Trade secrets have always protected the hidden aspects of programs, but can they be used to protect visible or easily discernible program features? This article suggests a new way developers might use trade secrets to protect visible program features. It examines how they might do so, relying on traditional case law and confidentiality precautions used to keep secrets. In doing so, the article considers whether and how such protection could be achieved in theory and in practice.

The article then asks how software licensing would change if trade secret protection of discernible features were achieved. It considers how software might be delivered (including software as a service), the potential for trade secret trolls, the role of open source development, and the potential effect on innovation incentives.

Finally, the article considers the alternative normative views associated with this new type of software protection.

Keywords: software, patent, copyright, trade secret, look and feel, NDA

Suggested Citation

Risch, Michael, Hidden in Plain Sight (April 8, 2016). Berkeley Technology Law Journal, Vol. 30, Forthcoming; Villanova Law/Public Policy Research Paper No. 2016-1022. Available at SSRN: https://ssrn.com/abstract=2761100

Michael Risch (Contact Author)

Villanova University Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

HOME PAGE: http://www1.villanova.edu/villanova/law/academics/faculty/Facultyprofiles/MichaelRisch.html

Paper statistics

Downloads
143
Rank
166,651
Abstract Views
544