Copy Right issue in computer software and hardware and IP

Connection of IP with
Computer Software
and Hardware

INTELLECTUAL PROPERTY AND COMPUTER SOFTWARE
There are intellectual property issues associated with four
elements of a software program:
1. Program function - whether the algorithm is performed by the
hardware or the software,
2. External design - the conventions for communication between
the program and the user or other programs,
3. User interfaces - the interactions between the program and
the user,
4. Program code - the implementation of the function and
external design of the program.

Patenting Software
Modern society relies heavily on computer technology.
Without software, a computer cannot operate.
Software and hardware work in tandem in today’s information
society.
So it is no wonder that intellectual property protection of
software is crucial not only for the software industry, but for
other businesses as well.
A software patent or copyright is a legal way to protect
your software source code, idea, or invention.
Both patents and copyrights protect software from theft
under the law. Each one protects a different part of
the software. Patents protect the idea,
while copyright protects the written code

Patenting Software
The intellectual property protection of computer software has
been highly debated at the national and international level.
For example, in the European Union (EU), a draft Directive on
the Patentability of Computer-implemented Inventions has
been discussed in order to harmonize the interpretation of the
national patentability requirements for computer software-
related inventions, including the business methods carried out
via the computer.
These discussions show divergent views among stakeholders
in Europe. Furthermore, the Internet raises complex issues
regarding the enforcement of patents, as patent protection is
provided on a country-by-country basis, and the patent law of
each country only takes effect within its own borders.

Do you really need a patent for your
software-related invention
A patent must be applied for, in principle, in each country in which
you seek patent protection.
In order to enjoy patent protection, an application for a patent shall
comply with both formal and substantive requirements, and a
patented invention shall be disclosed to the public. These
requirements can be legally and technically complex, and their
compliance often requires a legal expert’s assistance.
Compared with copyright protection, the term of protection is much
shorter, namely, in general, 17-20 years from the filing date of the
application.
Then why do many people seek to patent their software-related
inventions? The answers is manifold. But one of the strongest reasons is
that copyright protection extends only to expressions, and not to ideas,
procedures, methods of operation or mathematical concepts as such.

Do you really need a patent for your
software-related invention
Although copyright protects the ‘‘literal expression’’ of
computer programs, it does not protect the ‘’ideas’’ underlying
the computer program, which often have considerable
commercial value.
However, due to the complex requirements for the grant of
patents, the costs for obtaining and enforcing a patent may be
costly. Unless you have important financial resources, it may
be worth considering whether patenting your software-related
innovation is the best way to protect your product. The
possibility and feasibility of using other types of intellectual
property, such as trademarks, industrial designs and trade
secret protection, may also be considered.

What do you wish to protect from your
competitors?
Software may be incorporated in a computer or an apparatus, such
as a household appliance or a car. But often, such software is
created, reproduced and distributed on media (such as diskettes,
CD-ROMs or an online network) which are separate from the
hardware. Software may provide technical functions, such as
controlling a machine or regulating the room temperature.
It may be used to monitor communication network systems or
provide interfaces between a computer and a human being. Or, it
may be used to process scientific, financial, economic or social data
in order to, for example, explore a new scientific theory or seek the
highest possible return on an investment.
Depending on how the software is used together with the hardware, what
you wish to protect from your competitor may differ. The core part of your
software-related innovation may lie in an apparatus, a system, an
algorithm, a method, a network, the processing of data or the software
itself. Such considerations may help you assess the possibilities to obtain
a patent for your innovation.

Is your innovation patentable? Not all types of software-
related innovation can enjoy patent protection.
To be eligible for patent protection, an invention must meet several
criteria. Among those, five are most significant in determining
patentability:
(i) the invention must consist of patentable subject matter;
(ii) the invention must be capable of industrial application (or, in
certain countries, be useful);
(iii) it must be new (novel);
(iv) it must involve an inventive step (be non-obvious);
(v) the disclosure of the invention in the patent application must
meet certain formal and substantive standards.
Since patent law is applicable to inventions in any field of
technology without discrimination, to be patentable, software-related
inventions and business method-related inventions must also
comply with those requirements.

In connection with software-related innovation, particular attention
should be paid to the requirements concerning patentable subject
matter and inventive step (non-obviousness).
Firstly, a patent is granted for an invention, which may be described,
in general, as a solution to a technical problem. So far, there is no
international definition of invention, and indeed, each national law
would give you a different answer to the question as to which
subject matter falls under the term patentable invention. In many
countries, inventions are required to have a technical character, or
to provide a solution using laws of nature. Thus, mere economic
theories, methods of doing business, mathematical methods or
computer programs as such are not patentable inventions. Since
this requirement varies from one country to another, you should pay
special attention as to whether your software-related innovation is
covered by patentable subject matter under the relevant patent law.

Secondly, in order to obtain a patent, an invention must not be
obvious to a person skilled in the art having regard to the prior
art. It is not enough that the claimed invention is new, i. e.,
that it is different from what exists in the state of the art. But
the difference between the claimed invention and the existing
state of the art should be significant and essential to the
invention. Therefore, it is most likely that it will not be possible
to obtain a patent for a software-related innovation that simply
replaces existing technical and physical solutions with the
same solutions using software and a computer, so far as such
a replacement would be obvious to an average engineer in the
relevant technical field.

Do you need to protect your innovation abroad?
If you wish to protect your innovation abroad, in principle, you need to
obtain a patent in each country in which you are interested in
accordance with the law of that country. A patent that is granted in
country X, can be enforced only in country X, and it is not possible to
stop your competitors using your invention in other countries. In some
regions, a regional patent office, for example, the European Patent
Office, accepts regional patent applications, or grants patents, which
have the same effect as applications filed, or patents granted, in the
member states of that region. The major difficulty that you may
encounter when seeking a patent abroad is that national/regional laws
and practices differ from one country/region to another.
One example is the requirement concerning patentable subject matter.
In Europe, the European Patent Convention (EPC) expressly excludes
computer program per se and methods of doing business per se from
the patentable subject matter. Although there is no definition of the term
invention in the EPC, it is generally understood that inventions under
the patent law should have a technical character.

For example, methods for controlling an industrial process,
processing of data representing physical entities (temperature, size,
shape etc.) and the internal functions of the computer itself are
considered to have a technical character. A computer system used
in the field of finance may have a technical character if the process
is based on technical considerations relating to how a computer
works (for example, improvement of security), rather than just on
the consideration as to how the financial system works.
On the other hand, in the United States of America (USA), there is
no specific exclusion of software or business methods from
patentable subject matter. The law states that the subject matter, to
be patentable, must be a useful process, machine, manufacture or
composition of matter. According to the US Supreme Court , the
Congress intended the statutory patentable subject matter to include
anything under the sun made by man, but the laws of nature,
natural phenomena and abstract ideas are three specific areas
which are not patentable.

Therefore, it may be that certain software-related innovations are
considered as patentable subject matter in the USA, while the same
innovations might fall outside of the scope of patentable subject
matter in Europe or Japan.
In order to facilitate the filing of patent applications internationally,
the Patent Cooperation Treaty (PCT) provides an international filing
system, under which an applicant may file a single international
patent application having the same effect as national applications
filed in each Contracting State of the PCT.
However, under the PCT system, while the filing procedure is a
common one, it is still each single State that grants a patent for its
territory in respect of the claimed invention contained in the
international application. Nevertheless, the PCT system simplifies
the procedure and cuts down the costs of obtaining patents abroad.

COPYRIGHT AND
COMPUTER SOFTWARE

COPYRIGHT AND COMPUTER SOFTWARE
As others have noted, there is a digital divide between the developed
countries and the developing world. In the knowledge-based global
economy, computer technologies are an essential requirement for
accessing and using information, accelerating technology transfer and
boosting the growth of productivity.
At the same time, computer software products are perhaps the most
heavily protected of all forms of knowledge-based products. Under the
TRIPS Agreement, computer programmes now qualify for copyright
protection just as any other literary work, as well as for other forms of
IP protection, including by patents in some nations, such as the US.
Developing countries, of course, have a range of requirements for
computer software applications in their industries, hospitals, schools
and government offices. But most commonly, they need affordable
access to off-the-shelf business software packages, such as word-
processing, spreadsheet, e-mail and Internet browsing products.

Companies in Europe and North America, with Microsoft being
the major player, dominate the global market for these products.
The software industries of developing countries, even in India,
are mostly absent from the off-the-shelf, packaged computer
programs sector. Copyright matters most in the computer
software industry to the off-the-shelf business applications sector.
Unlike bespoke software applications, these products have a
mass market and can be easily copied. Copyright protection
enables companies to prevent copying, limit competition and
charge monopoly prices for these products. In developing
countries, this presents two main problems.

First, as there is currently widespread copying together with low
local purchasing power in developing countries, there is a
concern that stronger protection and enforcement could mean a
more limited diffusion of such technologies.
This may be a particular risk because the network effects of
business applications tend to re-enforce the dominance of
existing software producers.
Examining the evidence, however, we conclude that this problem
is not insurmountable for developing countries, if the right steps
are taken.
For example, governments and donor organisations could review
their software procurement policies with a view to giving greater
consideration to low cost business software products, including
generic and open-source products that are widely available.

The second problem is that where the source code of software is also
protected, this may make it harder to adapt the products for local
needs.
It may also restrain competition in development of inter-operating
applications, through follow-on innovation by reverse engineering.
Under TRIPS, developing countries are permitted the flexibility to allow
reverse engineering of software, so this problem may be avoided if
national copyright laws are drafted appropriately.
As another practical measure, more widespread use of the various
open source software products, where source code is made available
unlike proprietary software, may be considered. Alternatively, some in
industry argue that with stronger copyright enforcement, closed source
proprietary developers may be more willing to make source code
available to software developers in developing countries.

That said, given the considerable needs which developing
countries have for information and communication technologies
and the limited funds which are available, it would seem sensible
that governments and donors should certainly consider
supporting programmes to raise awareness about low cost
options, including open source software, in developing countries.
Developing countries and their donor partners should review
policies for procurement of computer software, with a view to
ensuring that options for using low-cost and/or open-source
software products are properly considered and their costs and
benefits carefully evaluated.
Developing countries should ensure that their national copyright
laws permit the reverse engineering of computer software
programmes beyond the requirements for inter-operability,
consistent with the relevant IP treaties they have joined

IP Protection of Databases
In most countries, databases qualify for IP protection through
trademark and copyright legislation (they may also be protected de
facto through contracts between the users of the database and the
service provider). However, protection for databases under copyright
law is limited.
The Berne Convention protects compilations or collections of works but
is silent on the protection of collections of material other than works
that are themselves copyrightable.
In the famous 1991 case of Feist Publications Inc. v. Rural Telephone
Service Co., the US Supreme Court denied protection to a telephone
directory on the grounds that the collecting of names, addresses and
telephone numbers was not an original creative work.
Under the EU’s sui generis regime, introduced in 1996, database
creators have the right to prevent extraction of the whole or a
substantial part of the contents of the database for a period of 15
years, although this term of protection is renewable whenever
substantial change is made (for example, through adding more data).

IP Protection of Databases
The argument that the EU’s regime is designed to protect
investment rather than original creative expression is supported
by the fact that in order to gain protection, the creators need only
show that they have made a “substantial investment” in
developing the database.

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