Overview

In the early days of computer software development, developers tended to rely on trade secret law and contractual obligations to protect their work products. Although these means of protection are still important, it soon became clear that they could not deal with all situations, particularly in an industry where workers tended to function as independent contractors and changed employers frequently. Thus, the focus of protection turned to the two main statutory rights: patent and copyright protection. In addition, we shall review a relatively new type of protection that has been derived from but is different from copyright protection giving protection to semiconductor chips.

The first statutory form of protection to attract the attention of software developers was copyright since the writing of code was similar to any other form of writing, computer languages being regarded as just one other form of language. Moreover, in the 1970's the case law in the patent field was showing some doubts as to whether computer programs could constitute patentable inventions. The early application of copyright law to computer software gave fairly broad protection. However, as the copyright case law developed, the application of traditional copyright limitations on the scope of protection to the new field of protection for computer programs led to a narrowing of the scope of protection afforded by copyright. The courts pointed out that the purpose of copyright was to protect particular expressions of an idea not the idea itself. Any broader protection had to meet the standards of novelty and nonobviousness required by the patent law.

At about the time that these decisions started to come down, case law relating to patenability of software-related inventions also started to change, this time in a liberalizing direction opening up the way to patent protection for software-related inventions. Part of the focus for protection therefore started to shift to patents, although the simplicity of securing copyright protection as compared with patent protection and the fact that for copyright protection there is no need to establish the inventivity of the work in question means that copyright protection remains of major importance in this field. Indeed, although it has become clear that traditional inhibitions on the grant of software related inventions have now been jettisoned in respect of inventions relating to business methods as well, as the Patent and Trademark Office develops its expertise in examining patent applications relating to software and business methods, it may become more difficult to obtain patents in this field and the focus may swing back to copyright protection.

The contents of this booklet are no substitute for proper legal advice on any particular problem, but we hope they will be helpful in a general way in assisting readers in focusing on the issues involved. While we believe that the information set out is accurate as of the date of writing, we cannot be held liable for any errors that may have occurred.