23 November 2012 by Vincent Billings

Software Development Agreements

With only 31 days to go until Christmas, many people will be considering buying smart phones, tablets and other electronic gadgets containing software. The recent high-profile litigation between Apple and Samsung demonstrated the value of intellectual property rights (“IPR”) in software and of ensuring that such IPR are properly documented and protected.

In today’s market, a detailed development agreement will usually be required when commissioning the development of any bespoke software product.

There are a number of key issues to consider in relation to software development agreements.

The term “software development agreement” can be used to describe a contract which covers a range of different issues, for example, the development, licensing, hosting and/or maintenance of the relevant software. The scope of these agreements varies widely, depending on the type/specification of the software, the customer’s business and the proposed application(s) for the software.

The main legal issues relate to the ownership of the core IPR in the software, agreeing the specification, testing the product, warranties, limitation of the developer’s liability and the developer’s obligation to design and build the software on time and on budget.

Software can be protected by various types of IPR, including copyright, database rights and (in some cases) patents. In addition, depending on the nature of the project, issues of IPR ownership and protection may need to be considered in relation to:

  • pre-existing software which is to be used without modification;
  • pre-existing software which is to be modified by the developer;
  • new software which is to be developed specifically for the customer; and/or
  • third party or open-source software which may form part of any (or all) of the above.

The ownership of IPR in newly-developed software can be a contentious issue. Unless specified to the contrary, the default is that the developer owns the IPR in the software (as the creator of the underlying code).

Usually the customer’s position (particularly in the case of very bespoke products) is that, having paid for the software to be developed, it should own the core IPR. However, software is rarely developed from scratch, and is usually constructed using existing code/components which the developer has built or adapted during previous projects (and which it may want to use again for other customers/projects).

As such, it can often be impractical for the supplier to verify that it owns the basic IPR in the software and can license its use. In those cases, the customer must ensure it is protected against third party infringement claims – we can assist with drafting warranties and indemnities. A comprehensive software development agreement will help protect your IPR and therefore the future of your business.

For more information regarding software development agreements and/or the exploitation of intellectual property rights generally, please contact us on 0207 288 4700 or email us at info@boltburdon.co.uk

1 November 2012 by

EU Review, or should that be Revue?

On 24th October 2012 the European Commission announced that it had asked the UK Government to review the limited spouse exemption from inheritance tax which applies where a UK-domiciled person dies and assets pass to their non-UK domiciled spouse.

9 November 2012 by

Is possession really 9/10 of the law?

On 13 October 2003 Schedule 6 of the Land Registration Act 2002 introduced a new regime to the law of adverse possession in respect of registered land.

Signup To Our Weekly e-News

"*" indicates required fields

We’ll never share your details with any third party in line with our privacy policy.