What's My First Step....?

JSonnab...

The first steps, in my opinion, are:

    (1) Find a qualified programmer.  

    (2) Have an attorney draft and the developer sign a software development agreement that protects your intellectual property interests in the software.  

    (3) Have the programmer develop the software.  

Once that is done, you can take the dual steps of:

    (1) seeking proper protection for your software and

    (2) shopping the software around.

- Jeff

Penny_B...

>> I have little confidence in a confidentiality and non-disclosure agreement...<<
 
I hear you on that score. Since what is/is not enforcible per each state's laws I would go with an attorney in the state the programmer resides.  

>>  (3) Have the programmer develop the software.<<

Would not the programmer be the first to reduce it to practice and, perhaps, may need to do more than tweak it to get it to produce its intended results. Why would he/she not minimally be named inventor and/or a co-inventor?

Afterall, the "conceptiventor" is merely that while the programmer works out performance nuts n' bolts turning the idea into a doable reality through his technical skills?  (I do understand the notion of surrending patent/copyright [IP] and financial rights in exchange for full payment).

PB

JSonnab...

Quote

Isaac

The question of whether a programmer, lab assistant, or technician
working under the direction of someone is an inventor
has no simple answer other than "it depends".  Consider
that a software invention can be constructively reduced
to practice by being described in a patent application that
contain only descriptions of functionality and it becomes clear
that a software based invention can be patented even though
no coded version of the invention has ever existed.

On the other hand, the process of generating code for even a
non novel idea can result in the programmer generating a
patentable invention.  In that case, the person contracting for the
code might not even be an inventor at all.

An inventor is someone who contributes to the conception of
a patentable invention as claimed.  Someone who simply reduces
the invention to practice as directed by someone else is not
an inventor.  Easier to say than to apply.

Obviously a great deal of the business issues can be dealt with via
contractural agreements between the involved parties.

Tony

If you outsource the programming make sure you get a non-disclosure agreement signed, preventing the developer from leaking your idea or stealing it.  You would also want to make it clear that you own all rights to the work and are just hiring the developer(s) as a "Work made for hire".  

Then after your software is complete you would want to Copyright your software.  You can go through a lawyer, or there are some places online that do it, or buy software to do it -  there is a product called Essential Copyright that enables you to copyright all of your works (software) for like $50 - it has a wizard that walks you through the application process - www.esoftwareinc.com

Isaac

I'd be careful with "work for hire" when software is involved.
Software does not seem to fit in the category of works that
can be works for hire when the programmer is not an employee.
Its best to back up a "work for hire" provision in such a
contract with an agreement that the copyright will be assigned to the
buyer if it turns out that the law won't allow it to be a
work for hire.

Also it's important to note that an NDA won't preserve
patent rights from 102(b) if someone does leak the rights
or appropriate the invention in violation of the NDA.

JSonnab...

Quote

Isaac

No case law that I can cite.  But the statute does have an
enumeration of the types of works that can be works for hire
and it seems to me that in the general case it would be
difficult to characterize software as one of the enumerated
types.  The list applies to non employee created works.

As evidence that the enumerated list should be taken seriously
I would point to the huge flap created when some unknown
party snuck in some legislation that added musical works to
the list which would have allowed typical industry contracted
works to be works for hire.  That provision has since been
removed, but there is case law suggesting that without that
provision, even contract terms designating those works as
works for hire are ineffective.