PrepTest 91+, Section 4, Question 23

This passage was adapted from an article published in 1991.

Because it is relatively easy and inexpensive to produce copycat computer programs, most people believe that some form of legal protection should be extended to creators of computer software. Without a legal deterrent to copycat programming, the resources expended by an individual or a company to develop an innovative software program could be unfairly exploited by rivals who develop a similar product and rush it to market at a lower price. The occurrence of such exploitation would leave software developers with little financial incentive to develop innovative products. While most legal commentators agree that copyright has generally proven to be an effective means of preventing this exploitation, some contend that patent protection is also needed to combat copycatting.

In essence, every piece of software is an encoding of one or more algorithms. An algorithm is simply defined as a series of steps to be followed in carrying out a task; to be usable in computer applications, an algorithm must be expressed in terms that can be processed by a computer. Proponents of software patents assert that in providing a specific way of achieving a desired result, the encoding of algorithms is analogous to the design of a process. Process designs (for example, an innovative way of inducing a series of chemical reactions) do, in fact, fall under the scope of patent protection. However, in order for any design to be patentable, it must be genuinely a product of invention (rather than, say, a law of nature or a logical axiom). For example, while a particular innovative windmill design might be patentable, the principle that wind can be harnessed to produce energy would clearly not be. On similar grounds, software algorithms, because they represent generic principles underlying the specific processes by which tasks are to be carried out by computers, should not be considered patentable.

Issuing patents for computer programs would extend protection to software developers beyond that afforded by copyright when there is really no compelling justification for doing so. Insofar as software programs constitute the expression of ideas in the form of specific texts (i.e., sequences of computer code), they fall more appropriately within the established domain of copyright law. Whereas patents protect the underlying design of an invention, even if it is never actually executed, copyright protects only the particular way in which the underlying ideas are expressed. Because the value of software lies in its form of expression, protection should be given only for particular applications—expressions of algorithms in an encoded form. Such protection could be more effectively afforded with only slight modification to existing copyright laws, and the financial incentive to develop innovative software could thereby be preserved.

This passage was adapted from an article published in 1991.

Because it is relatively easy and inexpensive to produce copycat computer programs, most people believe that some form of legal protection should be extended to creators of computer software. Without a legal deterrent to copycat programming, the resources expended by an individual or a company to develop an innovative software program could be unfairly exploited by rivals who develop a similar product and rush it to market at a lower price. The occurrence of such exploitation would leave software developers with little financial incentive to develop innovative products. While most legal commentators agree that copyright has generally proven to be an effective means of preventing this exploitation, some contend that patent protection is also needed to combat copycatting.

In essence, every piece of software is an encoding of one or more algorithms. An algorithm is simply defined as a series of steps to be followed in carrying out a task; to be usable in computer applications, an algorithm must be expressed in terms that can be processed by a computer. Proponents of software patents assert that in providing a specific way of achieving a desired result, the encoding of algorithms is analogous to the design of a process. Process designs (for example, an innovative way of inducing a series of chemical reactions) do, in fact, fall under the scope of patent protection. However, in order for any design to be patentable, it must be genuinely a product of invention (rather than, say, a law of nature or a logical axiom). For example, while a particular innovative windmill design might be patentable, the principle that wind can be harnessed to produce energy would clearly not be. On similar grounds, software algorithms, because they represent generic principles underlying the specific processes by which tasks are to be carried out by computers, should not be considered patentable.

Issuing patents for computer programs would extend protection to software developers beyond that afforded by copyright when there is really no compelling justification for doing so. Insofar as software programs constitute the expression of ideas in the form of specific texts (i.e., sequences of computer code), they fall more appropriately within the established domain of copyright law. Whereas patents protect the underlying design of an invention, even if it is never actually executed, copyright protects only the particular way in which the underlying ideas are expressed. Because the value of software lies in its form of expression, protection should be given only for particular applications—expressions of algorithms in an encoded form. Such protection could be more effectively afforded with only slight modification to existing copyright laws, and the financial incentive to develop innovative software could thereby be preserved.