The primary benefit of a software patent is the broad protection provided by the patent laws. An owner of a software patent may prevent all others from making, using, or selling the patented invention. In connection with software, an issued software patent may prevent others from utilizing a certain algorithm without permission, or may prevent others from creating software programs that perform a function in a certain way.
In contrast, copyright law can only prevent the copying of a particular expression of an idea. In connection with computer software, copyright law can be used to prevent the total duplication of a software program, as well as the copying of a portion of software code, which would be literal infringement. Copyright law does provide some protection against non-literal infringement; however, courts have recently been reluctant to interpret copyright protection of computer software in a broad manner. In addition, the basic tenet of copyright law is that copyright will protect only the expression of an idea, and not the idea itself. Therefore, copyright law will not prevent the creation of a competing program that utilizes the same ideas as an existing program if the expression (the code) is different.
As a result, a software patent can provide much greater protection to software developers than copyright law. The benefits of obtaining patent protection can be extraordinary. As more developers understand the potential of software patents, more patents are being issued. According to the Software Patent Institute, thousands of software patents are being issued every year, covering such areas as business software, expert systems, compiling functions, operating system techniques, and editing functions.
There are limitations to obtaining a software patent. A patent can only be issued when an invention is new, useful, and nonobvious. In addition, obtaining a software patent can be an expensive process, costing ten thousand dollars or more. The choice of whether to pursue a software patent or copyright protection for software should be made by comparing the value of the program to the cost of the patent application process and the likelihood of obtaining significant patent protection.