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

Before now, patent law was not commonly used to defend software related inventions.

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

It is understandable that software patents are at this time here to stay, nonetheless of whether or not programmers care for them to endure. The U.S. Supreme Court, in its latest Bilski finding, did not take the view that software ought not be qualified for patent protection. If you suffer any doubts, merely go to the U.S. Patent and Trademark Office website at and run an agent search for any chief software company, and you will observe 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 debate that software can now be safeguarded by patent law.

Patents supply durable protection in that they prevent against private invention, and are in opposition to reverse engineering. Copyright protection safeguards against copying, but "clean room" systems can be used to circumvent copyright protection. Such a system involves one team that decompiles software and organizes flowcharts or a type of how the software behaves. A separate team, which is not presented access to the code, arranges independent code founded on the flowcharts or the explanation. Copyright protection also does not safeguard against private creation.

In contemplation of whether copyright should be dependant upon instead of patent protection, you should be aware that the courts are relentlessly restricting the power to exercise 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 defense in a argument involving Lotus and Borland.

Additionally, a patent is not in reservation to the protection of independent development. Anyone making, using, or selling a patented computer program is an infringer, even though they had no familiarity of the computer program. Whilst asked to analyze the difference concerning 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."