Software Copyrights Take A Backseat To Patents

Gregory Aharonian has struck again. A well-known IP consultant and author of a widely read newsletter on patents, "PatNews," Aharonian has been attacking the legitimacy of many software and business-method patents for years. Now this IP gadfly is taking aim at copyrights.

On Dec. 7, 2004, Aharonian, who is developing a proprietary database program, filed a declaratory judgment action asking the San Francisco federal court to declare software copyrights unconstitutional. He believes it's difficult, if not impossible, to determine which aspects of a software program a copyright protects, pointing out that he could be prosecuted for criminal copyright infringement for building his database program.

Unfortunately, it is extremely difficult to apply these two restrictions of copyright to software. Which parts of a program are utilitarian? Which parts are protectable expression?

In his suit, Aharonian claims there's no good way to draw these distinctions, and that the courts have been all over the map in determining which aspects of software are protected. Thus, there is no way for him to know if his new business product will run afoul of copyright law.

Yet software patents will continue to remain the exception, not the rule, according to Steven Lundberg, an attorney in Minneapolis-based Schwegman, Lundberg, Woessner & Kluth and the lead author of the book, "Electronic and Software Patents: Law and Practice."

"Ninety-five percent of code wouldn't define a patentable process," he says. "Any given program might have a few patentable inventions, but you couldn't patent the literal code sequences."


Steven Seidenberg

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