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Discovery Discovery March 2002
Main Page On the Web Patents Corner Featured Stories In Focus

PATENTS CORNERby Becky Mahurin

For many years software was generally excluded from patenting. It was considered a mathematical formula, and thus, like the laws of nature, excluded from patenting. It was believed that if a mathematical formula or algorithm were patented then it would exclude others from using them.

However, in the mid-1990s the courts and the Patent and Trademark Office (PTO) reversed their stand on patenting software. The PTO even developed proposed guidelines on patenting software and computer-related inventions. Included among those guidelines are instructions that if the invention (software) directs a machine (a computer) and if the software directs a function which can be considered "manufacturing," then the software may be patentable.

More logically, we need to consider if the software meets the same three requirements that all inventions are asked to meet: novelty, utility and non-obviousness. If the software can pass those three tests, then it is considered patentable.

Software can, of course, be copyrighted also. The advantages for copyrighting over patenting include a lower standard for meeting copyright requirements. Copyrighting is less expensive than patenting and is a much shorter process than patenting.

But patenting has advantages too. Patenting allows for a broader scope of protection, a monopoly on the technology rather than just on the writings, increased licensing fees in general, and larger court awards should infringement occur.

Both copyright and patent protection are available for software. One must decide which form or whether both forms are the most appropriate mechanisms for protecting a particular software.

Should you have questions regarding software protection, please call me at 994-7868 or by e-mail at rmahurin@montana.edu.

Becky Mahurin is director of the Intellectual Property Administration and Technology Transfer at MSU.

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