I got some anonymous comments to one of my software patent posts of Wednesday last week.
The comments seem to assume that the public actually gets some meaningful disclosure from software patents. I don't share that idea.
The system could work that way. In a recent article in the German language Gewerblicher Rechtsschutz und Urheberrecht (2004, Page 198) the authors say that the patent system should require disclosure of source code when someone files for a software patent.
That is not, however, how things are done right now.
The comment also says that I "misunderstand the inherent nature of copyright and patents as applied to software."
That is not correct. I do know the difference between patents and copyright, thank you. My point was that since there is already copyright protection, there is no need for patent protection on top of that. There is no reason why software should qualify for double protection.
But, then on the other side, I was actually wrong. I overlooked the fact that there is also trade secret protection in undisclosed source code. Software - and only software - gets the triple protection of patent law, copyright law, and trade secret law. Microsoft can file their ten patents an average week and still not disclose their source code.
I don't think that it is true that software is the only thing that acquires multiple layers of protection. For example,
- a song on a tape: has copyright in the sound recording per se, and in the lyrics within the sound recording, and for the music within the sound recording;
- a picture of a mechanical machine on paper: has copyright in the picture, and design rights and patent rights in aspects of machine therein;
- trade secrets exist in the way that a product is manufactured, despite the fact that the product is disclosed to the public, those secrets may even be in the formulation of the materials (e.g. a polymer) which could possibly be analysed by an expert.
In the same way, a computer program source code and binary is copyright protected from per se copying, yet copyright _expressly_ excepts the acts of reverse engineering (and such a principle is stated in TRIPS) which can be used to uncover the ideas and concepts in the program in the same way that mere reading of a copyright protected novel allows you to extract and reuse ideas and concepts therein.
It's easy to find examples of electromechanical products where, say, surface features are copyright protected, the design has design rights, there are patented mechanisms, and perhaps aspects of the material (say, a unique polymer) or the construction (say, how to manufacture the invention to consistent tolerance levels) are trade secret protected.
I'm not sure about disclosure of source code: flowcharts and other diagrams should be sufficient to allow anyone to work the invention by reproducing the logic in a computer language. The question is whether these as provided in the invention are sufficiently disclosing.
One of the problems I find with the debate over patentability of software related inventions is:
(a) the technical community is not legally versed and fails to understand the gamut of IPR and how it applies in its complex layers and ways, not just to software, but to any form of material;
(b) the legal community is not technically versed enough to understand the complexity of software development and architecture.
Personally I worked in hands-on development for 15 years before training in IPR law, and now I can see both sides of the fence. Interestingly, at the time my copyright lecturer described the reverse engineering provisions as virtually useless because of the intractibility of reverse engineering, yet there are many examples of where this has been practiced, and there's a large underground community that does this on a regular basis.
Posted by: wham on April 19, 2004 05:39 PM