You may also be interested in:
Additional Information
Copyrighting Software vs. Patenting Software
Suppose you have written a program that can analyze your research data better than any commercially available software. There may be a growing demand for your program among your colleagues, or perhaps you can foresee an even greater demand. Are you concerned about the possible misappropriation of your program? If so, how should you protect your software?
Traditionally, the most common route of software protection has been copyright. In the cyberspace era, this type of protection may be less than adequate. Software patents are becoming more popular; it is worth examining which form of protection is most sensible for your program.
A copyright protects an original work in the tangible, fixed form in which it has been set down. It protects only the expression of the work, and not the idea underlying the work.
The primary purpose of copyright is to promote the exchange of information and advancement of ideas that may benefit society. The protection of an author's interest in his creative work is also an aim of copyright - a copyright holder has the exclusive right to make copies, prepare derivative works, and distribute copies of the work for the duration of the author's life plus seventy years. An exception to these rights, granted under the Copyright Act of 1976 and known as "fair use", permits the use of a copyrighted work for nonprofit or educational purposes.
Any original work, including software, is legally copyrighted as soon as it is recorded in a medium. Official registration of copyright is wise. Registration establishes a public record of the copyright claim, and provides considerable legal advantage in the event of an infringement suit. Software copyright registration is straightforward: visit the U.S. Copyright Office website and download Form TX.
Unfortunately, the interpretation of copyright law as applied to software has not yet reached a point of consistency, and the protection provided by copyright is relatively weak. Under copyright law, software is regarded as a "literary work". Obviously, copying a literary work verbatim is plagiarism ("infringement"), but the courts also view non-literal copying as infringement. If two works are not "substantially similar" in embodiment, then there is no infringement. Applying this vague rule to software is hindered by the lack of technical expertise amongst the legal community (e.g., an inability on the part of a judge to understand a program language), and a lack of clear definitions as they pertain to software.
The ambiguous nature of copyright can be seen by comparing the cases Wheelan Associates Inc. v. Jaslow Dental Labs (1986) and International, Inc. v. Altais, Inc. (1992). In the former case, the program in question was not completely original; it was deemed entirely copyright-protectable on the basis of it's original structure and organization. In the latter case, non-original components were removed from the software before it could be protected by copyright.
Patenting is becoming the method of choice for effective protection of original computer programs. Whereas a copyright protects an original work in the tangible fixed form in which it has been set down, a patent protects the creation of inventive concepts as well as their reduction to practice.
A patent owner has the right to keep others from making, selling, or using a patented invention for twenty years from the filing date of the patent application. In order to meet patentability criteria, an idea must be novel, useful and non-obvious to one of "ordinary skill" in the field of the invention. Patents fall into three main classes, utility, design and plant. An invention subject to a utility patent must fall into one of the following categories: machine, article of manufacture, process, or composition of matter.
Increasingly software is being described as a collection of processes, as a unique machine, or both, enabling the protection of the inventive concepts behind an original program. Getting the courts to shift towards this perspective has been a long road, and has generated a fair amount of confusion. The following cases highlight the gradual evolution of the legal mindset.
In 1931 a Supreme Court ruling rendered laws of science and nature unpatentable (mathematical algorithms, formulas and equations were believed to fall under this category). In a pivotal case in 1946, Gottschalk v. Benson, an algorithm was rendered unpatentable, but only because there was no particular application defined for the algorithm. In 1981, in Daimond v. Diehr, the process claim for operating machinery using a computer was upheld as patentable. The algorithm in question was patentable only in the context that it was used in conjunction with all of the other steps of the claimed process. Further clarification of this matter was provided by the U.S. Patent and Trademark Office (USPTO) in 1989. The USPTO's Official Gazette (no. 11, 1989) published guidelines for software patenting, highlighting that a computer directed by a computer program is a statutory machine. A recent 1994 patent allowed that computer software could be patented as a machine, because "a general purpose computer becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software."
The trend in patenting software is apparent by querying the U.S. Patent Office's Patent Database with the keyword "software." Just over one thousand software patents were issued in 1993 and 1994. In 1997 and 1998, over three thousand software patents were issued. This said, it is not exactly straightforward to win a patent for a software program. In software, determining nonobviousness is difficult, for in such a young field it is difficult to determine what the appropriate level of ordinary skill actually is. Evaluating prior art is also complicated, because the prior art in software is often not documented in paper form. As the numbers show however, more and more programmers are finding patents to be the method of choice for software protection.
Additional Information
Copyrighting Software vs. Patenting Software
Suppose you have written a program that can analyze your research data better than any commercially available software. There may be a growing demand for your program among your colleagues, or perhaps you can foresee an even greater demand. Are you concerned about the possible misappropriation of your program? If so, how should you protect your software?
Traditionally, the most common route of software protection has been copyright. In the cyberspace era, this type of protection may be less than adequate. Software patents are becoming more popular; it is worth examining which form of protection is most sensible for your program.
A copyright protects an original work in the tangible, fixed form in which it has been set down. It protects only the expression of the work, and not the idea underlying the work.
The primary purpose of copyright is to promote the exchange of information and advancement of ideas that may benefit society. The protection of an author's interest in his creative work is also an aim of copyright - a copyright holder has the exclusive right to make copies, prepare derivative works, and distribute copies of the work for the duration of the author's life plus seventy years. An exception to these rights, granted under the Copyright Act of 1976 and known as "fair use", permits the use of a copyrighted work for nonprofit or educational purposes.
Any original work, including software, is legally copyrighted as soon as it is recorded in a medium. Official registration of copyright is wise. Registration establishes a public record of the copyright claim, and provides considerable legal advantage in the event of an infringement suit. Software copyright registration is straightforward: visit the U.S. Copyright Office website and download Form TX.
Unfortunately, the interpretation of copyright law as applied to software has not yet reached a point of consistency, and the protection provided by copyright is relatively weak. Under copyright law, software is regarded as a "literary work". Obviously, copying a literary work verbatim is plagiarism ("infringement"), but the courts also view non-literal copying as infringement. If two works are not "substantially similar" in embodiment, then there is no infringement. Applying this vague rule to software is hindered by the lack of technical expertise amongst the legal community (e.g., an inability on the part of a judge to understand a program language), and a lack of clear definitions as they pertain to software.
The ambiguous nature of copyright can be seen by comparing the cases Wheelan Associates Inc. v. Jaslow Dental Labs (1986) and International, Inc. v. Altais, Inc. (1992). In the former case, the program in question was not completely original; it was deemed entirely copyright-protectable on the basis of it's original structure and organization. In the latter case, non-original components were removed from the software before it could be protected by copyright.
Patenting is becoming the method of choice for effective protection of original computer programs. Whereas a copyright protects an original work in the tangible fixed form in which it has been set down, a patent protects the creation of inventive concepts as well as their reduction to practice.
A patent owner has the right to keep others from making, selling, or using a patented invention for twenty years from the filing date of the patent application. In order to meet patentability criteria, an idea must be novel, useful and non-obvious to one of "ordinary skill" in the field of the invention. Patents fall into three main classes, utility, design and plant. An invention subject to a utility patent must fall into one of the following categories: machine, article of manufacture, process, or composition of matter.
Increasingly software is being described as a collection of processes, as a unique machine, or both, enabling the protection of the inventive concepts behind an original program. Getting the courts to shift towards this perspective has been a long road, and has generated a fair amount of confusion. The following cases highlight the gradual evolution of the legal mindset.
In 1931 a Supreme Court ruling rendered laws of science and nature unpatentable (mathematical algorithms, formulas and equations were believed to fall under this category). In a pivotal case in 1946, Gottschalk v. Benson, an algorithm was rendered unpatentable, but only because there was no particular application defined for the algorithm. In 1981, in Daimond v. Diehr, the process claim for operating machinery using a computer was upheld as patentable. The algorithm in question was patentable only in the context that it was used in conjunction with all of the other steps of the claimed process. Further clarification of this matter was provided by the U.S. Patent and Trademark Office (USPTO) in 1989. The USPTO's Official Gazette (no. 11, 1989) published guidelines for software patenting, highlighting that a computer directed by a computer program is a statutory machine. A recent 1994 patent allowed that computer software could be patented as a machine, because "a general purpose computer becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software."
The trend in patenting software is apparent by querying the U.S. Patent Office's Patent Database with the keyword "software." Just over one thousand software patents were issued in 1993 and 1994. In 1997 and 1998, over three thousand software patents were issued. This said, it is not exactly straightforward to win a patent for a software program. In software, determining nonobviousness is difficult, for in such a young field it is difficult to determine what the appropriate level of ordinary skill actually is. Evaluating prior art is also complicated, because the prior art in software is often not documented in paper form. As the numbers show however, more and more programmers are finding patents to be the method of choice for software protection.