Protection of intangible assets in the context of “Fintech” (Finance & Technology)


New technologies do not stop barging in all sectors of our economies radically transforming the delivery of services. One area of activity is being shaken Banking, it is that for some time new financial services or investment payments are appearing. This is what has been called “Fintech” or financial technology.

This broad concept welcomes all those start-ups, banks and credit institutions that use new technologies for the development of their traditional services: investment banking, credit for consumers and businesses, investment in foreign currencies, investment or payment intermediation , etc.

The business models of these companies and their competitive advantage is based, inter alia, in the use and development of new software, algorithms or methods of data analysis -big massive data-. Consequently, the legal protection that can be offered to these intangible assets is key to consolidating the sector and promote its development.

One of the key elements used by Fintech companies are their algorithms, complex problem-solving methods and financial processes based on a number of variables such as credit history, the interest rate, risk or profitability. The legal protection of algorithms has been attempted from the perspective of patents, as this is one of the most strengthened protections the legal system provides. However, both the rules and the European jurisprudence are very restrictive and reject “protect mathematical methods”, which does not mean that companies such as the Holvi Finnish (recently acquired by BBVA), continue to submit patent applications to protect its methods financial. In the US, however, the case was being more permissive, until the recent case Alice (October 2014), which lays a doctrine that toughens requirements for patentability of algorithms.

However, although the method in the abstract is not protectable, its implementation in source code form, as part of a software, yes it can be. In this case the protection is articulated by copyright on software source code, which prevents others from copying the code, but not the algorithm itself.

Moreover, computer programs or software play a key role in the context of Fintech. In Spain and in Europe the software is protectable by way of copyright. This protection covers the source code and the object code of the program. Patent protection, desirable for its greater legal force, is only possible for those inventions -inventions computer in which the intervention of a computer- that solve a technical problem needed inventively implemented. If the software passes the test for patentability, it will be protectable by patent.

Another of the most lucrative activities a financial-technology company can develop is the analysis of big data generated by its customers. Just think about the amount of information that a bank account contains about our life and our consumption habits. Analysis of this information has great value, so that the protection of databases of these companies is key to ensuring their income. Currently, the databases are protected by copyright and by a specific law, called sui generis, which broadly protects the investment in the creation of the database, preventing extraction reuse of content without authorization of the owner.

Finally, the importance of ideas, methods, and information with a company that counts – in short, its know-how- is another extremely important asset. Companies must necessarily resort to signing confidentiality agreements with its employees and the companies with which they relate, as well as the rules of unfair competition, which provides protection for the secret, commercially valuable business information.

Finally, remember that brands are a very important element to achieve differentiation of a company and its products or services on the market. In this regard, it is important to register a mark before starting the activity.

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