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By: Mark R. Malek

A couple of weeks ago, I wrote an article about overenforcement of copyrights.  In that particular article, I gave the example of a software copyright case (at least it was filed in Federal Court as a software copyright case) where the attorney was trying to argue everything but copyright.  Of course, he lost.

In that case, the attorney continuously argued that since my client’s software performed the same function, it must have infringed the copyright on his client’s software.  He could not have been further from correct, as was evident in the summary judgment that was awarded in favor of my client.  In short, copyright does not protect function.  Copyright, by definition, provides the author of an original work various rights to exploit that work and to prevent others from exploiting the original work without authorization for a fixed period of time (yes, I will write about the “fixed” period of time and how it magically extends every so often). I expect to receive several comments from the copyright abolitionists that I have been arguing with lately.  To see my previous articles on trying to figure out the arguments of the copyright abolitionists, click here and here.  Don’t worry, I’ll get back to proving why the copyright abolitionists cannot articulate an argument that makes any sense whatsoever soon.

Back to the issue at hand – why did this attorney so blur the lines between patents and copyrights? Short answer – there was likely a competence issue.  Another possibility, however, is that both copyright and patents can be used to protect software.  Copyrights, however, only protect the authorship and artistic expression that is the result of software, whereas patents protect the function that the software carries out.  For example, the actual lines of code used to write the software are copyrightable, and the expression of the software on the screen, e.g., a website design and layout, is also copyrightable.

The function that the software carries out, however, is not copyrightable.  Instead, that is protectable by patents.  Although this is a simplistic example, software that provides a function of linking several users together so that they can purchase and sell items in an on-line setting (eBay) may be patentable.  In other words, an application directed to patentable subject matter could be written that protects the function of an on-line auction system.  The issue there, however, is that something so broad would never in a million years be allowed.  There is so much software out there, and so many people that are developing software that the amount of prior art is tremendous.  That is why folks who are embarking on the software patent process need to understand that such patent applications are extraordinarily expensive and, if allowable, will only cover limited scope.  Gone are the days of preposterously broad software patents.  I believe that is one of the advantages of software patents – it is not as though a patent will be allowed for something as broad as an on-line auction site.  Instead, a patent that could possibly be allowed on software would need to include several details and be narrowly tailored to the specific unique and non-obvious function that the software carries out.

Therefore, to unblur the lines between copyrights and patents, just remember one simple rule.  Under no circumstance is function protectable using copyright.