Patent protection may be better for the following reasons:

1) Its term is shorter - 20 years from date of filing - rather than the long protection given to copyright (life of author + 70 years, usually).

2) Patent protection is tougher to obtain, with thresholds of utility, novelty, and nonobviousness. Although computer software qualifies as eligible subject matter (a process, tied to a machine or transformation), the other thresholds likely limit patentability for many software programs, especially those that are mere copycats or minor improvements of other programs. That makes patents for computer software relatively difficult to obtain, as opposed to copyright protection, which comes with lower substantive standards.

3) Blocking patents foster more cross-licensing and improvements than derivative works under copyright. When one inventor creates new patentable software based on another inventor's software, patent law creates incentives for both to cross-license. Having multiple players provides incentives for them to license to the public and for the public to experiment as well. On the other hand, an unauthorized derivative "author" of a new software program based on a copyrighted software has no IP rights.

4) Patents encourage open disclosure of claims and how to use and make the computer program. That encourages others to learn about new software and gives them opportunities and the know how to make better software. The first inventor, through disclosing the invention in the patent application, must provide clues to others in the art on practicing the invention. Copyright, meanwhile, provides little incentives for others to experiment with and use software to create new software (fair use is limited in extent here).

The drawback about patents is the extensive protection, especially in distribution rights (prohibiting sale and offering for sale). It has fewer exceptions for non-licensed users to experiment with. I am curious to see what the impact of the recently passed America Invents Act will have on patents for computer software. For all you IP fans, do you think patent protection is better or worse than copyright for computer software?

-- ThomasHou - 03 Oct 2011