Page 55 - January 2006

Patent Talk
PROTECTING COMPUTER SOFTWARE: PATENT OR COPYRIGHT
D. Lloyd Rice
Lafayette, Colorado 80026
Gregory Aharonian
San Francisco, California 94111
Lloyd Rice, retired software engineer and editor of the
Patent Reviews section of the
Journal of the Acoustical Society of America, discusses the questions
“Can computer software be patented?”
“Can it be copyrighted?” “Which of
these makes more sense?” with Greg Aharonian, San Francisco patent attorney and editor of PatNews, a
widely read Internet newsletter on
the current state of patents and copyrights.
D. Lloyd Rice
Lloyd: Patents and copyrights are firmly rooted in the capital- ist principle that individuals and business organizations have a right to receive profits from their creativity. The original concept was meant to apply to the results of physical cre- ations, but patents and copyrights extended that right to the results of mental activities. Patents also allow the public dis- closure of ideas which would otherwise be trade secrets. In exchange for that disclosure, the inventor gets a limited monopoly on the idea.
Is it true that a patent protects an idea, whereas a copyright protects the way that idea is expressed?
Greg: Copyright law does not define the terms “idea” or “expression,” letting judges apply these terms at their arbi- trary discretion. Protecting an adaptation via copyright is equivalent to a narrowly defined patent claim. Protecting a specific, artistic article of manufacture via patent is equiva- lent to a copyright, but is more powerful. Lawyers have com- pletely ignored the overlap of these two systems.
Lloyd: How does this apply to software? The purpose of soft- ware is to make a machine behave in a particular way. But many different forms of the software could result in exactly the same machine behavior. For example, in the computer languages C or C++, the two statements
for ( ; ; ) { xxx } and
while ( 1 ) { xxx }
mean precisely the same thing and would be completely interchangeable in any program which used one or the other. Nearly every statement in a program will have many such interchangeable forms of expression. This fact clearly seems
Gregory Aharonian
to say that a copyright would be useless as a way to protect a pro- gram. The style of how the program is expressed is of little concern in the real task of the software, which is to produce a particular machine behavior.
Greg: I agree. Court decisions on software copyright are generally nonsensical because they keep on
trying to extend copyright to functionality (despite what it says in United States Code Title 17, Section 102b), because with software, expression is secondary.
Lloyd: Many have argued that software is essentially a mathe- matical formula. Mathematical expressions are not and have never been patentable. Does this position then apply to soft- ware?
Greg: You get the law wrong. Mathematical expressions by themselves are not patentable. But mathematical expressions in specific applications, with inputs and outputs for a real world problem, are patentable. So as long as the software addresses a real world problem, it is patentable.
Lloyd: It can be argued, based on some social philosophies, that any mental creations should be public property. Taking the view that software should not be protectable at all as intel- lectual property, a culture has grown up around the idea that software is a public resource and that it should be freely avail- able to all who want to read, understand, or modify it for their own purposes or for further distribution. This point of view grew up with the advent of small computers in the hands of individuals. It took root with the formation of the Free Software Foundation (FSF) by Richard Stallman and came into its own right as an acceptable form of software dis- tribution with the growth of the Linux operating system, written by Linus Torvalds.
Greg: Government and university laboratories were develop- ing and making available tons of public domain software many years before the FSF. And that software was truly free, without the absurd conditions imposed by Stallman's General Public License (GPL).
Lloyd: One of the reasons the purveyors of open source soft- ware want to stick with copyright instead of going with
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