Computer Intellectual Property Laws
There are few statutes or other sources of law dealing specifically with computers,
but this does not mean that there is no law governing this ever-more important
area of commerce. All of the areas of Intellectual Property law outlined in
the other intellectual property section affect computers, and thus are included
in "Computer Law," but there are some unique features of Copyright,
Patent and Trademark law that are applicable to computers.
Patent Protection
Computer programs are treated like electronic machines or
tools. As such, a patent can protect the ideas, systems, methods, algorithms,
functions, or
other properties of computer programs that are otherwise unprotectible under
copyright or trade secret laws. A patent can also protect the program at
multiple levels. Detailed coding sequences as well as the “look and
feel" of the program can be protected under patent law. So patents can
protect a software program all the way from specific application to equivalent
or similar implementations, or even a series of software products (an important
factor given the short life span of software). But remember that it takes
eighteen to thirty months to obtain a patent, so plan ahead, and consult
your intellectual property attorney early.
When applying for a patent there are a number of things you should know. First,
the US Patent and Trademark Office has been criticized in the past for not
being as sophisticated and knowledgeable about computer software as they are
in other areas. To put another way, you cannot expect your typical software
patent examiner to have the same level of expertise as your typical computer
programmer.
This fact will affect your software patent application. The application may
need to be accompanied by a person-to-person interview between the patent examiner
and the software developers. It would also help to include with the application
some materials describing the invention in simpler terms and a description
of the prior art in the area (i.e., what has been done in this particular software
market before). The United States Patent and Trademark Office also encourages
inventors to disclose the program flow chart form, block diagrams, and pseudo-code.
These materials must enable a ordinary computer programmer to make and use
the program without much difficulty. Your patent counsel should be able to
lead you through all of this (if he cannot, find new counsel!).
Cost of Patent
Three major costs are involved when obtaining a patent on software.
- The patent attorney's time to prepare the software application: the cost
of preparing the application can run from $7,000 to $100,000. Average cost
is
between $10,000 to $30,000.
- The prosecution costs: Average cost for prosecuting
the patent before the Patent Office is between $10,000 to $20,000.
- The costs
involved in searching for software which represents the “prior
art:” estimates are hard to give since a lot of it depends on how diligently
you search and how difficult it is to uncover the “prior art." One
estimate can put it between $2,000 to $20,000.
(Compare these costs with copyright protections. The cost of obtaining a
Copyright is negligible.)
As noted above, it can take eighteen to thirty months to obtain a patent on
software. And as you know, in that many months, software is already middle-aged
if not near the end of its lifespan. The patent's main benefit, therefore,
may be in those situations where the company is creating software that is ground-breaking.
That way, all software coming after which is built upon the groundbreaking
software will have to pay for the right to sell the later-developed software.
Another benefit to obtaining a patent, especially for small startup companies,
is that it gives the patent-holder a bargaining chip if the company finds itself
enmeshed in an intellectual property dispute. Rather than getting bogged down
in financially ruinous intellectual property litigation, small companies challenged
by another company sometimes cut a deal and say, ``Don't sue us on your copyrights,
patents, etc., and we won't sue you." The two companies then go back to
focusing on their products and making them better rather than fighting each
other over intellectual property rights that have a very short half-life in
any event. Of course, the fewer intellectual property rights a company owns,
the less attractive bargain it can offer to the other side, so a patent may
be a nice blue chip when it comes time to deal.
Another aspect of intellectual property laws arguing in favor of patents is
the fact that patents protect the novelty of the software, as opposed to Copyright's
protection of the originality. You see, with Copyright, the creator of a software
program is protected against anyone who may copy his program. But if someone
else develops a similar or identical program on their own without any copying
of the prior program, then Copyright offers no protection or power against
the second creator. Copyright protects the original work from unauthorized
copying, but it offers no protection against original and independent development
of similar or identical products. Patents, on the other hand, would protect
the patent-holder from anyone who would offer an infringing product regardless
of whether the infringing product was developed independently and originally
without any copying of the earlier program.
This is not to say that patents do not have some drawbacks. One rather large
drawback to a patent is that once (if!) the patent passes all the hurdles of
the US Patent Office, the application and all materials submitted with it become
public documents, and anyone caring to examine the documents has access to
them. And you better believe that your competitors will be examining them!
All trade secrets found in the application material are lost at that point.
But while the patent application is pending, the contents of the application
are kept secret. But if the code is disclosed in the application, it can still
be copyrighted.
Copyright Protection
In 1980, amendments to the Copyright Act extended statutory copyright protection
to computer programs. Now the owner of copyrighted software has exclusive
control over:
- duplication of the software;
- preparation of derivative works or versions
of the software; and
- distribution of the software to the public.
Copyright protections extend to software regardless of the language or
format (disk, printed, CD-ROM's, etc.). In addition to prominent
locations on the
box and opening screens, copyright notices should be incorporated
into the code itself.
Like all copyrightable works, you need to deposit a copy of computer programs
along with the application for a copyright. If the work is an unpublished or
a published computer program, the deposit requirement is one visually perceptible
copy in source code of the first and last 25 pages of the program. For programs
of less than 50 pages, the whole program must be submitted.
If the work is a CD-ROM format, the deposit requirement is one complete copy
of the CD-ROM, the operating software, and any manuals accompanying it. If
the identical work is also available in print or hard copy form, send one complete
copy of the print version and one complete copy of the CD-ROM version.
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