This document discusses patent protection and its application to software. It begins by recapping trade secrecy law and its limitations for software. It then introduces patents as a stronger form of intellectual property protection that provides a limited-time monopoly on an invention. For software to be patentable, it cannot claim an abstract idea, algorithm, or scientific principle alone; it must demonstrate utility, novelty, and non-obviousness. While software patents were initially controversial, a 1981 court case established that a physical process using a computer program could be patented. The document ends by discussing theories of intellectual property and how software challenges traditional notions of ownership similar to Locke's labor theory.

1. Patent Protection
Dr. Varun Kumar
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2. Outlines
1 Previous Discussion → Trade Secrecy Law
2 Patent Protection
3 Software and Patent
4 Software as Property
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3. Previous Discussion
Previous Discussion
⇒ In Bingos case, trade secrecy would have helped.
⇒ Non-disclosure agreements would prevent employee from giving away
important secrets even after they left.
⇒ This might only be useful during development.
⇒ Once BOS is released, it is more difficult to control.
⇒ General principles are
⇒ BOS is trying to sell or license the software.
⇒ Which was not hidden.
⇒ Trade secrecy works for specialized be spoke software but is poor for
general purpose software.
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4. Patent Protection
Introduction to Patent
⇒ Patent is potentially the strongest form of protection
Gives inventor monopoly on use of the invention - even if someone else
makes the same product in a different way.
They are excluded from using it.
Grants patent owner the right to licence others to make, sell or use the
invention.
Legitimize a monopoly
Is granted for a limited number of years (17 in the USA)
Aim of patent:
♦ Ensure inventor
♦ Promotion of useful arts and science as well.
♦ Encourage others to learn from and build on inventions.
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5. Continued–
Aim of Patent
⇒ It also promotes disclosure of inventions and assures that ideas
already in the public domain remain there.
⇒ Patent does not guarantee financial success.
⇒ This is only achieved if the product is accepted by the market.
⇒ An abstract idea, an algorithm or a scientific principle can’t be
patented.
Patent protection must satisfy the following criteria:
⇒ Falls into a category of permissible subject matter.
⇒ Satisfies the three tests of having
Utility
Novelty
Non-obvious
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6. Software and Patents
⇒ There was great reluctance in granting patent on software on the
basis of: → 1970s
Fear of ownership of mental process
Fear of patenting a mathematical algorithm
⇒ US court case of Diamond versus Diehr was settled in 1981.
Diamond versus Diehr case: A physical process, by running a
computer program did not preclude patentability of the invention as a
whole.
⇒ Many patents have been granted on software.
⇒ There is still concern that patents must not be granted for building
blocks of science and technology.
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7. Software as Property
⇒ Software has challenged the traditional notion of property and
ownership. There have been two theories:
Consequentialist: Property rights are good because they lead to good
consequences.
Kantian: Everyone has the right to be autonomous.
⇒ This idea is derived from Lockes Labour theory.
A person has natural right to what he/she produces.
This can be applied to software as well.
Example:
⇒ Recall the Bingo case.
⇒ PPOS copied BOS and as such they stole Bingos labour.
⇒ Bingo has lost the capacity to sell (and make money from) its creation.
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