Regardless of your philosophical leanings on the issue of software patents, if you’re in the software business, you need to worry about them. A lot of people, such as the inventor of modern e-mail, are opposed to software patents. I have certainly written patent applications with many software engineers who did not like the idea. V. A. Shiva, the e-mail inventor, sums up the point of view in this video clip: if you want to protect software intellectual property, use the copyright laws.
This is a legitimate point of view. Indeed, can even proponents of software patents deny with a straight face that the law surrounding the patentability of software is, at best, uncertain, and, at worst, deeply troubled? I hope to tackle policy prescriptions as this blog evolves, but for now, let’s accept the facts and move on to consider practical implications.
Regardless of your philosophical leanings on the issue of software patents, if you’re in the software business, you need to worry about them. (I hope the repetition isn’t too subtle; this is a very important point.) Why? A lot of reasons. First, even if you aren’t applying for software patents, your competitors are. Even companies that are philosophically opposed to software patents sometimes obtain them for defensive purposes. Second, patents and copyrights are generally complementary, not substitutes for one another. (This is a bit of a simplification, but patents protect ideas, while copyrights protect the expression of ideas.)
Some software applications can be protected by trade secrets. If a user will be unable to divine your novel algorithm from using your application, then maintaining trade secrets is probably the way to go. But if you have a novel and valuable system that can be divined by a user of the application, i.e., someone with no access to source code, then mere reliance on trade secret or copyright law will leave a gap in your intellectual property. From a purely pragmatic perspective, you owe it to you business to consider a patent application. Patent applications can be expensive, time consuming, and uncertain of success. They do not always make business sense. They are, however, for the moment, at least, a reality. They deserve practical consideration as a business tool.
(And by the way, I fully endorse Mr. Shiva’s advice concerning copyright protection for software. It is a truism that copyrights arise from the moment an expression is committed to a medium, i.e., as you write your novel, or your computer program, but go the further step and register your copyrights. We’ll cover copyright protection for software more in future posts. For now, know that applying for a U.S. copyright registration is cheap, easy, and uncontroversial. A copyright registration confers a lot of benefits. There is no reason not to obtain one.)