® BuscaLegis.ccj.ufsc.Br
Gregory J. Kirsch
Introduction
SEE ALSO
An Introduction to Patent Law
How to License Customized Software
Strategies for the Use of Patents by Start-up Internet Companies
During the past several years, many computer software and communication
technology companies have increasingly begun to use patents as the primary
mechanism for legally protecting their computer software and other innovative
techniques from misappropriation by others. At the same time, many software
companies have grown to rely less on copyright protection to protect their
innovation. This divergent, but possibly related, trend has caused a dramatic
shift in thinking in the software and communication technology industries -- a
change destined to have a major impact on the continued advancement of these
technologies. Regardless of whether this impact is deemed positive or negative,
it will be a significant impact.
To understand how the changing roles of patent and copyright protection will
affect the software and communication technology industries, at least a basic
understanding of the underpinnings of the patent and copyright laws must be
possessed. This article focuses on patent and copyright protection in the
United States, although it will be understood that many of the basis principles
discussed will be applicable to the intellectual property laws of other
countries. Also, because of the many similarities between the application of
intellectual property principles to both software and communication
technologies (such as the Internet, telecommunications, etc.), this article
treats these varying technologies in a like manner.
U.S. Copyright Protection
In the United States, the copyright and patent laws were created by Congress
under its Constitutionally mandated power "to promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."
With respect to the copyright law, the key constitutional language is "to
promote the Progress of Science..., by securing for limited Times to Authors...
the exclusive Right to their respective Writings...". The copyright laws
serve to protect the "writings" of "authors" against
unauthorized copying. Only those works that are "original" are
protected, and therefore, independent creation by another without access to the
copyrighted work would not be copyright infringement, and would, in fact,
entitle the second work to copyright protection in its own right.
In the computer software context, a computer program, either in its original
"source code" format, or in its machine-readable format, is generally
deemed to fall within the definition of a "writing" for copyright
purposes. In fact, in 1980, the U.S. copyright laws were amended to make
explicit that computer programs, to the extent they embody an author's original
creation, are proper subject matter of copyright. While there has been a
considerable amount of debate on this point, case law supports this view.
U.S. Patent Protection
Unlike copyright law, the relevant constitutional language for implementing the
patent laws is "to promote the Progress of... useful Arts, by securing for
limited Times to... Inventors the exclusive Right to their...
Discoveries." Because it is the "useful arts" that are being
protected, only a useful "process, machine, manufacture, or composition of
matter, or any... useful improvement thereof" can be protected by a
patent. In addition to being useful , to obtain a patent, the invention must
also be novel (new) and non-obvious.
The novelty requirement may be contrasted with the originality requirement of
copyright law. To be novel and non-obvious, the invention must not have been a
part of the "prior art," and must not have been an obvious variation
of the prior art, regardless of whether the invention was created independently
from that of the prior art. This is markedly different from copyright law,
where independent creation of even an identical work results in copyright
protection in the second created work.
An issued patent allows the patent owner to exclude others from making, using
or selling the patented invention. Such a right operates regardless of whether
another copied the invention from the inventor of the patented subject matter.
Why Copyright and Patent Protection?
When developing computer software, the creator of the software usually wishes
to ensure that the time and effort expended is somehow protected against
misappropriation by, for example, a competitor. By the same token, the software
developer not only wants to prevent others from making verbatim copies of the
software, but also from copying as much of the innovation that went into the
software as possible.
Software operating on a computer causes the computer to perform a process, and
the process can usually be represented by any one of a multitude of different
(even if functionally equivalent) sequences of software code. Thus, a software
developer does not merely wish to rely on the prevention of verbatim copying of
the software, since a competitor may observe the functions performed by the
software, and without knowing the details of the software code underlying the
functions, write equivalent code.
Thus, given the choice, most software developers want to be able to (1) prevent
others from making, using and selling verbatim copies of the software, and (2)
prevent others from utilizing the functionality by which the software operates.
From the software developer's point of view, the broader such protection
exists, the better.
Just as the software developer wants to protect its software from being copied,
either exactly or functionally, society (you, me and everybody other than the
software developer) wants to have broad and inexpensive access to software that
performs useful functions in new and innovative ways. It would benefit society
the greatest if it (1) could have access to a wide variety of innovative and
useful software products, (2) while paying little for such software.
Because software lends itself well to being easily copied and distributed, it
would be possible for the laws to allow for society to pay little for software
-- by simply allowing for any and all copying and distribution of software by
third parties. Of course, such a law would provide little incentive for
software development, as few companies or individuals would be willing to go to
the trouble to develop software knowing that it could be easily copied without
recourse.
Thus, assuming that society wants to have wide access to innovative software,
it is safe to say that society is willing to pay for this access, such as by
allowing software developers to have proprietary rights in their creations.
However, unlike the software developer, who wishes to have broad rights that
allow him or her to reap a maximum return on investment, society likely is only
willing to grant the software developer enough of an incentive so as to create
a minimum threshold of innovation -- or usefulness -- in the developed
software. In the end, society wishes to reward the software developer, but not
to the extent that the developer would optimally desire.
The Ideal Level of Protection for Software
Obviously, a gap exists between the level of legal protection afforded software
that the developer ideally wants, and that which society is willing to grant.
However, as with any other difficult legal determination, a line, albeit not
always a bright line, can be created that is equally fair to both the creator
of software and society.
When creating the ideal level of protection for software, a number of factors
can be taken into account, including:
At what minimum level of protection will a software developer be willing to
develop a particular piece of software?
What is the maximum price society is willing to pay for such a piece of
software?
How can the level of protection be created so that the maximum amount of
innovation in software is generated, at a price suitable for the maximum number
of members of society?
Of course, these are but a few of the types of policy questions that must be
asked and answered in order to arrive at the fairest level of protection.
The next article in this series will provide an overview of the dramatically
changing roles of patent and copyright protection for software and
communication technology. http://www.gigalaw.com/articles/2000-all/kirsch-2000-03-all.html
Disponível em: http://www.cbeji.com.br/br/novidades/artigos/index.asp?id=4833
Acesso em: 14 setembro. 05.