As the technological innovation has incredibly increased in the last few years, the number of computer programs is currently immense. As a matter of course, the relation between computer programs and intellectual property has been taken in consideration. The subject matter of the debate concerns the appropriate protection for computer programs. Such programs can be subject to copyright or patent, or even both. This article will consider whether patent is the best protection for computer programs.
The fundamental justification of patent is also one of the frequent arguments given by proponents for a patent protection. Indeed, the main goal of patents is to encourage the industrial innovation given that the financial investment is protected. In this regard, patent protection represents a kind of motivation given to small inventors to make inventions. Besides, because of its publicity, patent is a source of innovation and diffusion.
The greatest advantage conferred to patent protection over copyright is the fact that it protects the idea or concept underlying the invention. A patent may protect some features embodied in the program and processes accomplished by the program. Indeed, such protection is incredibly necessary because of the rise of business on the Internet, which enormously facilitates the copy and transmission of computer programs in the four corners of the world. Another advantage is the fact that patent protection runs not only against copiers, but also against independent inventors. Indeed, patent protects against competitors who created the same results without copying.
However, patent protection is deficient to the extent that patents are subject to different criteria: novelty, industrial application and inventiveness. Besides, because of its characteristics, it is extremely complicated to control effectively the novelty and inventiveness of software. As a consequence, one of the disadvantages of patent protection is due to the high costs for using, conserving and defending the patent.
Moreover, the fact that software are cumulative and sequential innovations means that they are composed from new elements but also from adapted elements and re-use of others. Consequently, it is inevitable for the investor to infringe existing computer program patents. Thus, regarding the economic purpose of patents, it would not be appropriate to grant patents for innovations, which are actually not completely inventive.
At first sight, patent offers a better protection for computer programs than copyright. Nevertheless, a closer inspection reveals that, through the patent and copyright protection for computer programs, none of them involve an optimal protection.