When you think of protecting your business’ Intellectual Property (IP) and technology, it is common to think about patenting. If you are sitting on a million dollar website idea and you are considering your next best move, it’s important to look at how you can protect your IP. Protecting your IP gives your business a competitive edge and you don’t want to miss out on becoming the next eBay, Airbnb or Uber web administrator.

What is a Website?

Although it’s not possible to patent an entire website, you shouldn’t let this get your hopes down. A website is a collection of web pages linked to a domain address. Various elements work together to create the text, sounds, images and video displayed on your screen. Within the website, certain aspects and software may be eligible for a patent.

Software patents for computer-implemented inventions are treated as typical patent applications and must pass the same tests of novelty and inventiveness. Importantly, the patent system does not cover source code or computer programme code.

Software patents cover the methods and steps a computer programme or interface implements. For example, Amazon’s “One Click Checkout” received a patent for its e-commerce software. The patent was not, however, granted for “business methods”.

When applying for a software patent, there are no guarantees and you will be looking to protect the methodology of the software programme. It is a good idea to have drawings and diagrams to display this method.

How Can I Protect my Website Without Patent Protection?

If your website and its operating mechanisms don’t qualify for a patent, you might like to think about alternative IP protection through trade marks, copyright, trade secrets and website terms of use.

1. Trade Mark

You may decide to register the name of your brand, your domain name or logo. The names eBay, Facebook, Google and Uber, are all registered trade marks with recognisable websites and logos. Trade mark registration will provide you with proprietary rights to use the name or logo of your website to distinguish your website from competitors. Trademarking your website’s brand will allow you to protect your brand as your site grows and gains traction. Trademarking early on will prevent competition from using your name and also create a high-value asset that you can sell, licence or assign should you decide to.

2. Copyright

Copyright under the Copyright Act 1968 (Cth) is an automatic right that attaches to your website once your idea, content, design and layout have been expressed in its material form. Copyright can protect the website in its written form (“literary work”) as well the design and graphics. Copyright protection will exist for the life of the author plus 50 years.

3. Trade Secrets

The inner workings of your website, privileged employee information and confidential commercial strategies are considered trade secrets. To protect this information from competitors, you will need to use non-disclosure agreements when discussing your trade secrets with third parties. It is also important to have a confidentiality and non-compete clauses in your employment agreements, to prevent employees from disclosing trade secrets and also becoming a direct competitor.

4. Website Terms of Use

Website terms of use govern how website visitors use your website. These terms and conditions set out your copyright and intellectual property to users visiting your site. You can determine how site visitors can use your content and if you offer a licence to use the material. For instance, you may permit users to save, copy, print and download your content for personal and educational use only. You are entitled to prohibit commercial exploitation of website content.

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Unless you have created a website with mechanisms and functionality that is novel and inventive, you’re unlikely to be able to obtain patent protection. But that doesn’t mean you can’t protect your website. If you have any questions about protecting your website, get in touch with our IP lawyers on 1300 544 755.

Sophie Glover

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