Copyrights v. Patents – Round 1

For those of you who haven't seen this article, check it out.

Essentially, a lawyer is working to convince the Court that software can be protected adequately via Patents instead of Copyrights. This article does not say who he is working for or who is aligned on each side of the case, but I have some suspicions that I won't air at the moment. Instead, I'll describe the scenario and you can decide who would benefit.

Company A has a piece of software that does something useful to a particular market. The potential customers become actual customers and the company starts making big money because their product is the only one like it on the market. They copyright all of the code and only distribute the compiled version.

Company B is a competitor and realizes that Company A's software is nothing special and decides to go after the same market. By looking at some User's Manuals and playing with the 30-day trial version, Company B is able to build a comparable product that does most of the functionality without ever looking at Company A's code.

Q: Has Company B done anything wrong?
A: No, they used publicly available information and did not illegally obtain any of the source code.

Now, let's tweak the situation a bit and say that Company A went and got a patent instead of a copyright for their “Software-based method for Projecting Wool Yield Based on Sheep Weight”?

Q: Has Company B done anything wrong?
A: Maybe, see next question.

Q: How similar is Company B's implementation to Company A's explanation on file in the Patent Office?
A: Someone will have to figure this out before Company B sells any more potentially patent-infringing software.

So now Company B is tied up in court fighting a defensive action trying to demonstrate that their method is completely different. If Company A really wants to make the fight dirty, they can also muddy the water by making *some portion* of their source code available publicly after the patent has been granted. Then, any similarities that exist between the two codebases work against Company B. Company A no longer has to protect the bulk of their source code as anyone who looks at it could be “tainted” and only further hurt Company B…

In summary, if you can get the process of “Programmatically Iterating Through an Ordered Set Sequentially” patented, then it doesn't matter the implementation, anything with a “for loop” is now suspect.

Now, which organizations would/could use this as ammunition against which other organizations?

Buckle your seatbelt Dorothy, because Kansas is going bye-bye.