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Misleading questions

Posted by RWM on 2010-05-07 06:51:42

Some of the questions in this poll are misleading.

A program cannot be patented. What may be patentable (if it's new and innovative) is a process, and while programs may contain one or more new and innovative processes, it is only those processes - not the entire program - that are patentable.

The way programs are protected is through copyright. If you want to improve on somebody's program (as opposed to writing your own), you have to have access to their source code and you have to obtain their permission, since your modified version of their program will be considered, in legal terms, to be a derivative work based on theirs. And all of this is true regardless of whether their program contains any patented processes. They may choose to let you use and modify their copyrighted code for free, or they may not.

When somebody patents a process that is used in a piece of software, the effect of this is therefore NOT that you need their permission to modify their program (which would be true even if no patents were involved). It is that you need their permission to use that process, even in a program that you have written from scratch. And this is true even if you came up with the idea for the process on your own, without knowing that they had already invented and patented that process.

Patent protection is not necessary to protect important processes. They can also be protected through trade secret. The differences are:

  • Trade secrets must be kept secret. You must restrict who has access to the process and the code used to implement it, and must require that anyone who is given access to it sign a contract in which they agree to keep the trade secret confidential. Patented processes, on the other hand, must be disclosed in the patent application and made public, since everyone must be able to find out what patented processes exist so that they don't infringe on anyone's patent.

  • Trade secrets don't have to be new or innovative, so it is possible to get trade secret protection for things that wouldn't be eligible to be patented.

  • Trade secret protection lasts as long as you keep the process secret (the formula for Coca Cola, e.g., is still a trade secret of the Coca Cola Company after more than a century), while patent protection lasts only for 20 years, after which anyone will be able to use the process, since you had to make its details public when you patented it. The 20 year limit on patent protection may be of limited importance for computer software, however, since computers are changing so rapidly that the idea may be obsolete by the time the 20 year patent period ends.