You operate in a world of intellectual property (IP) rights that protect your innovations and those of your competitors – but you, like much of the UK computing industry, probably overlook these rights, to your considerable detriment.

Even staunch US advocates of open source, such as Red Hat, engage in extensive patenting. At the time of publication, Red Hat had 41 published patent applications.

Look for yourself using a free online patent search tool to see what your rivals are up to. Try http://ep.espacenet.com/advancedSearch?locale=en_EP and type in Red Hat’s name under applicant, or try a few keyword searches in your own areas of expertise.

The economic evidence for and against patents in the software sector is by no means conclusive, in contrast to the pharmaceutical sector where the benefit of patents to research is abundant.

Nevertheless, patents are a legal reality in the software sector. You could, therefore, legally be securing greater profitability and market sustainability for your company by protecting your software innovation – no matter what your beliefs on the subject.

The legal problem is that while you may have some IP rights these are likely to be only the weaker IP right of copyright in software code rather than the stronger form of patents that protect inventive concepts – not just the expression of those concepts. Your competitors – especially larger or US companies – may well have both.

The US has a liberal approach to patenting software. This evolved in the 1990s when it was easy to patent simple implementations of known processes on the internet – such as the Amazon one-click patent. But when Amazon brought a patent infringement action against rival bookseller Barnes & Noble, the companies settled out of court, indicating the commercial strength even of a weak patent.

The controversy would not have gained the momentum it did if the appropriate prior-art documents had been available to the patent office examiners when they assessed the validity of the applications, and they examined properly the alleged invention for novelty and inventiveness.

Thankfully, the prior-art databases are now better and the examiners are more aware of their responsibilities to the software sector, not just the patent applicant.

Nevertheless, the picture is somewhat different here in Europe, and the EU has commissioned yet another study into the economic impacts of software patents. Whatever it concludes, the EU is extremely unlikely to persuade the US to change if it determines that software patents are bad.

I suspect the prevailing European law will continue even after the latest survey, with the more rigorous hurdle for patenting software-related innovation continuing to require an invention not only to be novel and inventive, but to address a technical problem and provide a technical solution.

Patents will remain a legal reality – which it is negligent to ignore, no matter what your beliefs in open source.

To quote from someone in the open-source community: ‘I’ve yet to see an open-source licence that required applications built on top of its platform to cede back IP rights – clearly that would destroy the incentive to use that platform,’ he said.

‘The rest of the rights necessary to create the platform are often most valuable when given away – open sourced – to incentivise growth of the platform that makes the applications valuable. It’s that simple.’

While the law is inconsistent internationally and this has caused confusion in the software community, the overriding message is simple: if your software development is new and took some inspiration – call it a eureka moment – on the part of the programmer, then there is a good chance of having a patent granted for the development. It might be only in liberal countries such as the US and Australia, but there might be some prospect in Europe also.

Even if you believe large corporations abuse the system by obtaining too many patents for questionable innovations then, to quote from the Red Hat patent policy: ‘One defence against such misuse is to develop a corresponding portfolio of software patents for defensive purposes.’

Indeed, the reality for many bigger firms, in contrast to smaller companies who use IP genuinely to forge new markets and obtain capital investment, is that patents very much become a defence mechanism. They protect a market and provide an opportunity to cross-license in the event of allegations of infringement of competitor IP.

So, ask yourself: ‘Do I have a good market position that is vulnerable to attack?’ If yes, ask: ‘What is our defence?’ If you don’t know, talk to a patent attorney. It could be a sound decision.

Dr Karl Barnfather is a European patent attorney at law firm Withers & Rogers LLP