Software intellectual property ... protection alternatives.

Unlike any other creation, the law allows developers to protect their software in different ways: as a trade secret, with a copyright, or as a patent. This article explains the advantages and the disadvantages of these alternatives. It then present the claims of software professionals for and against protection of software with copyright and as a patent, and suggest elements for consideration if the law is changed to regard software in a nontraditional manner.

To date, software has been treated by the law unlike any other intellectual property. It may be protected as a trade secret as if it were a process; it may be protected under the copyright law as if it were a book or music piece; or it may be registered as a patent as if it were an invention. No other creation can be protected by either copyright or patent. The purpose of this article is to explain the three options of protecting software as intellectual property, and to examine the claims of software professionals for and against the current alternatives of protecting software.

Protecting Software as Intellectual Property

In a free market society there is a hidden struggle between two conflicting interests. On one hand there is the desire to disallow monopolies; on the other hand, there is the recognition that one is entitled to own one's creation and therefore monopolize it. Writing a new computer program is certainly a creative activity. The program is similar to literary works, but sometimes it is also similar to technical inventions. Therefore, there are more than one way to protect software as one's property. Legally, there are three options for protection of software as intellectual property: by making it a trade secret, by copyright, or by patent.

Trade secret protection is provided by state laws. Under these laws, a trade secret is any information used in one's trade or business that is not generally known in that trade, is used in secret, and affords a competitive advantage. The laws protect the idea contained in the product or process. As an example to what the states consider as trade secret, here is Wyoming's definition:

'Trade secret' means the whole or a portion or phase of a formula, pattern, device, combination of devices or compilation of information which is for use, or is used in the operation of a business and which provides the business an advantage over those who do not know or use it. 'Trade secret' includes any scientific, technical or commercial information including any design, process, procedure, list of suppliers, list of customers, business code or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art and the level of skill in the business, art or field to which the subject matter pertains, when the owner of a trade secret takes measures to prevent it from becoming available to persons other than those selected by the owner to have access to it for limited purposes, the trade secret is considered to be:

(A) Secret;