Computer Software a Hybrid Approach

All computer programs, fixed in any form by any method, performing any function for any purpose, are entitled to copyright protection. In addition, software may be entitled to patent protection when it meets the statutory requirements for patentability. This dual level of protection has confused many people as to when and what types of protection should be used to protect Software programs. Software programs consist of code, graphics, screen displays, menu navigation and specialized function routines. Different aspects of software applications are entitled to different types of protection. In general, however, patent protection is the strongest but one of the shorter types of protection while copyright protection is longer, but generally not as strong.

The Copyright Office began registering copyrights on computer software in 1964, but registration only raised a presumption in favor of copyright validity. Any doubts as to whether software could be the subject of copyright were dispelled by the passage of the Computer Copyright Act of 1980.

Copyright protection has been held to subsist in both source code and object code. Furthermore, copyright has been held to extend to application programs, operating systems programs and computer code. Copyright protection is also available for video games and other programs with complicated and creative audiovisual displays.
Copyright Protection of Screen Displays

Protection of the programs contained in the silicon chips is not in itself sufficient for video game authors because video game audiovisual displays can often be replicated by means of computer programs which are markedly dissimilar and, therefore, non infringing. Thus, the courts have permitted authors of video games to independently register the sights and sounds of their games as audiovisual works. Where stylistic creativity constitutes a minor aspect of an audiovisual display, the Copyright Office considers the creative aspects of the screen display to be covered by the underlying computer program and will not require separate registration.

Utility Patent Protection of Computer Programs

The United States Supreme Court has held that otherwise patentable processes implemented via computer software constitute patentable subject matter. Thus, computer algorithms, when associated with a computer to accomplish specific purposes, have been held to be protectable by utility patents as long as they do not recite or preempt mathematical equations. Also, media such as ROMs, tapes or diskettes embodying computer programs may be patentable as falling within the statutory subject matter of patentable articles of manufacture.

Design Patent Protection of Software Screen Displays

While utility patents protect the functional aspects of technology, design patents protect their ornamental aspects. Thus, companies have sought and obtained design patents on ornamental designs used in their graphical screen displays.

Patents Provide a Stronger Form of Protection then Copyrights

Neither the U.S. Constitution nor federal statutory law provides that patent and copyright protection should be an either/or proposition. Patents and copyrights are very different forms of protection with patent protection clearly the stronger form of protection. Unlike copyrights, patents protect against infringement even if the infringing program was not copied from the patented program but was independently created. In addition, while neither patents nor copyrights protect ideas, patents protect embodiments of ideas. Thus, patent protection extends not only to the coding of computer programs which qualify for protection but to equivalents of such coding, the underlying computer algorithms, equivalents of those algorithms, and particular applications of those algorithms. The scope of copyright protection will probably not be extended beyond a computer program’s underlying algorithm.

The Idea/Expression Merger Limits Copyright Scope

The scope of copyright protection is limited by a doctrine known as the idea/expression merger. This doctrine provides that where an idea can be expressed in only a narrow variety of ways, copyright protection should protect only against identical copying. The doctrine of idea/expression merger may have an impact over the scope of copyright protection for certain operating systems programs. A similar issue is the appropriate scope of copyrights on computer code. It has been held that the idea/expression merger requires a very narrow scope of copyright protection for short computer code sequences because the coding of the sequences may be dictated by rigid constraints. On the other hand, the idea/expression merger is not available as a defense to a patent infringement action.

The Copyright Office Regulations
The Copyright Office has created a direct obstacle to obtaining copyright protection for design patented computer software. Copyright regulations provide that while the eligibility of a work for design patent protection and the application of a work for design patent protection will not affect the availability of copyright registration, copyright registration for a work will be denied after a design patent has been issued. This regulation has a direct effect upon the protectability of computer screen displays. The application of this regulation may block any screen display icons previously protected by design patent from eligibility for copyright registration.

The Patent Office Regulation

A regulation enacted by the United States Patent and Trademark Office allows previously copyrighted screen display icons to be included with a copyright notice on design patent applications and on granted design patents. Thus, while the Copyright Office regulations probably prohibit previously design patented icons from being registered for copyright, one can obtain joint copyright and design patent protection by obtaining the copyright registration first.

Joint Copyright and Patent Protection

While the Copyright Office regulations may create an obstacle to obtaining copyright protection for previously design-patented icons in computer screen displays, the Patent and Trademark Office regulations expressly permit items which are previously copyrighted to later be the subject of design patents. While the case law and federal regulations do not directly address the availability of joint copyright and utility patent protection for computer software, the same considerations apply as in the design patent context. Joint copyright and patent protection for software, regardless of whether the patent is a design or utility patent, does not constitute an illegal extension of the patent grant.