The Patent System and Computer Programs

The framers of the United States Constitution established the patent system so that inventors would have an incentive to share their inventions with the general public. In exchange for divulging an invention, the patent grants the inventor a 17 year monopoly on its use. The patent holder can license others to use the invention, but may also refuse to do so. Independent reinvention of the same technique by others does not give them the right to use it.

Patents do not cover specific systems: instead, they cover particular techniques that can be used to build systems, or particular features that systems can offer. Once a technique or feature is patented, it may not be used in a system without the permission of the patent-holder--even if it is implemented in a different way. Since a computer program typically uses many techniques and provides many features, it can infringe many patents at once.

Until recently, patents were not used in the software field. Software developers copyrighted individual programs or made them trade secrets. Copyright was traditionally understood to cover the implementation details of a particular program; it did not cover the features of the program, or the general methods used. And trade secrecy, by definition, could not prohibit any development work by someone who did not know the secret.

On this basis, software development was extremely profitable, and received considerable investment, without any prohibition on independent software development. But this scheme of things is no more. A change in U.S. government policy in the early 1980's stimulated a flood of applications. Now many have been approved, and the rate is accelerating.

Many programmers are unaware of the change and do not appreciate the magnitude of its effects. Today the lawsuits are just beginning.


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