Objectives

Intellectual property regimes is often about making optimizing the amount of ideas, knowledge and innovations that are introduced into society, and the spread among members of society. This applies especially to patents, copyright, design rights, plant varieties, semiconductor rights and knowhow. Trademarks and trade dress a slightly different, as those are more about creating an association between consumers and providers of products and services.

In order to optimize the introduction of innovation, intellectual property law creates a reward: an exclusive right for the creator, if certain conditions are met. This should be an incentive for creative people to actually spend time and effort on coming up with new things, which some might otherwise not do if they would not be able to have the exclusive economic reward from it.

However, in order to optimize the spread of innovations throughout society, this exclusive right should set just long and comprehensive enough to let the incentive be effective, but then to allow the society at large to benefit from it. An as important feature of intellectual property law is thus also the limit that it sets. Once that limit is reached, the innovation starts to become public domain and anyone in society can start to copy.

Ultimately, intellectual property regimes are about creating a surplus for society – and enlarging ideas and knowledge in the public domain. And the temporary exclusive monopolies for an individual, are a means to an end.

When finishing my engineering degree in applied computer science, I wrote my master’s thesis on the subject of intellectual property on software. This focused in particular on the developing of software, and thus how developers can protect their software from potential competitors. This is a different set of problems that has little or nothing to do with the attention that software piracy has received – software piracy is only important for the loss of income from end clients and it is just a case of piracy like any other type of digital content in the age of internet.

Instead, for developers that want to maintain their competitive position, intellectual protection on software rather focuses on preventing reverse engineering (which the law allows), and preventing that clones hit the market (possibly developed through reverse engineering, or otherwise at least by mimicking some essential functionality). To prevent such reverse engineering, developers may often rely on technical measures and contractual measures. And to prevent clones from hitting the market, they often try to rely on contractual measures and also on patents. This is still a very disputed domain, in the area of patents.

Patents protect inventions, which are solutions to a problem that are not solved with the state of art. In essence, that can be a product (i.e. a new type of microprocessor) or a method. In contrast to copyright protection, patents cannot protect code as such. This way of thinking requires some adaptation for developers, to understand that the software code as such is not protectable, but that a bigger picture can be protectable.

Some news on software patents:

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