The Programmer’s Guide To Understanding Software Patents

A software patent has no universal understanding. In general, owning a patent allows a company certain rights (or exclusivity) for a prescribed amount of time. Individuals or corporations seeking a patent must apply for a patent in each country in which they wish to have one. Unlike copyrights, patents are not automatically granted to applicants and can take a while to be approved.

The growth of Internet business and e-commerce has led to many patent applications for software, particularly software designed for specific business applications. While the cases are granted and successfully tried and defended in some countries, other countries offer no enforcement or legal recourse for those who do not honor the software patent, even if the patents were granted in those countries. The fine line between nations about what is and isn't patentable is another challenge to establish and honor patents.

Patents differ greatly from copyrights, which are issued automatically and recognized and enforced internationally. Copyrights protect the source code of software from being copied and registration is generally not required to protect your work.

Lately there is a new term, “Copyleft,” which is an obvious play on words and represents the rights to not only redistribute the copyrighted works, but also to modify and freely distribute those modifications. This term is very much in the spirit of many open source types of software and music. The catch for copyleft protection is that the newly created work be distributed in the same manner and spirit in which it was received. In other words if you were freely given the software, then you must freely provide the improvements and modifications you made to that software.

One unfortunate circumstance surrounding patents is the unequal and obvious disparity between the haves and the have not's. Patent enforcement for software, unlike literature and music, is largely subjective. In literature and music, it is obvious that the copyright has been abused or that the work has been copied; this isn't as simple with software.

How to Copyright and Patent Your Software

If you're wondering how to copyright software, the good news is you've probably already done it. At least you have if you have ever written software. Most people get confused over exactly what having a copyright for their software means. Only those things that can be seen (when it comes to software) can be copyrighted. If you want to protect the abstract, look into patents. Otherwise if it is original, fixed, and tangible you can copyright it. Essentially you already know how to copyright software if you've put it into a finished form. Once you've written the source code, the copyright belongs to you.

Copyrighting software doesn't offer the protection that many people hope it will. The idea of software and anything about the finished product that wasn't available in a tangible (visible) form isn't protected by copyright. In fact, the only thing undeniably protected by software copyright is the source code. The question you should ask yourself is not how to copyright software, but how to patent your software.

To obtain a patent for your software, you must apply for a patent in each country that offers patents for software and in which you wish to have the protection a patent can offer. There is no universal legal definition of what a software patent is. Each country that offers patents also has a different definition for what is protected by that patent, as well as for why a patent will be granted. Also consider the fact your software may be given a patent in one country where you applied and none of the others.

Of course, if this is not enough fun for you, you can try to deal with the red tape involved in dealing with multiple governments to resolve any issues or disputes that may have arisen from your software patents.

If you are applying for international patents (which can secure a profitable future for you and your business), you need to find a good patent lawyer and have him walk you through the entire process. Patents are complicated. When you're not exactly sure of what you're doing, whom you need to talk to, and what the next step is, you stand to waste a lot of time while taking a bigger risk. It is much easier to deal with how to copyright software on your own than it is to work out the complicated world of software patents.

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