Should I Use Copyright Law or Patent Law to Protect My Software?

Throughout the evolution of patent law, case law destroyed the worth of copyright protection. In addition to the statement that copyright defense does not prevent against independent invention, but requires copying, menu edifices have been held to be not competent of copyright protection in a new case involving Lotus and Borland. Still, copyright protection can abide in addition to patent defence. Registration can supply some valuable benefits (e.G., provisions for attorney’s fees and statutory damages) at a cost of probable loss of trade secrets.

It is apparent that software patents are at this time to stay, nonetheless of whether or not programmers wish for them to endure. The U.S. Supreme Court, in its latest Bilski conclusion, did not take the stance that software ought not be qualified of patent protection. If you suffer any doubts, merely go to the U.S. Patent and Trademark Office website and execute an agent search for any chief software company and you will realize that they possess many software patents. The law and U.S. Patent and Trademark Office practice regarding business methods, where no processor is necessary, is not fullly resolved. There is no questioning that software can be safeguarded by patent law.

Patents supply powerful protection in that they defend in contrast to private invention, and in opposition to reverse engineering. Copyright protection safeguards against copying, but “clean room” practices can be used to circumvent copyright protection. Such a practice involves one team that decompiles software and organizes flowcharts or a type of how the software performs. A separate team, which is not presented access to the code, arranges independent code established on the flowcharts or the explanation. Copyright protection also does not safeguard against private creation.

In reference to whether copyright should be dependent upon instead of patent protection, you should be aware that the courts are sternly restricting the power to make use of copyright law to defend infringement. In addition to the fact that copyright protection does not defend against independent invention, but requires copying, menu structures have been held to be not proficient of copyright defence in a justification involving Lotus and Borland.

Nevertheless, a patent is not contingent upon a protection of independent development. Anyone making, using, or selling a patented computer program is an infringer regardless that they had no realization of the computer program. Whilst asked to examine in contrast, the difference involving copyright and patent protection for his PC spreadsheet program, the inventor of Visi Calc was cited to state “With a patent the only difference would have been several hundred million dollars.”