Heather Meeker, an attorney at the international law firm Greenberg Traurig, LLP, and a specialist in intellectual property transactions for software and other technology clients. She has written a very useful article on the software / copyright kerfuffle published here by LinuxInsider [tip o' the hat to Gregory Aharonian's Patent News for the pointer]. Here are just a few of the very useful thoughts expressed by Meeker:
Open-source advocates have embraced copyright as a protection scheme because they perceive it as flexible. That is true -- maybe too true. Also, to be fair, copyright protection is cheap (costing zilch) and patent protection is expensive (costing many thousands). But it seems to me that the rhetoric may be leading us in the wrong direction.
If you oppose software patents, it's only fair to articulate why software patents are worse than any other patents. I don't hear engineers soliloquizing about how awful it is to patent a chemical treatment process or an electronic device. Actually, the problem with U.S. software patents, if anything, is not their essential nature, but their quality. There are some reasons why software patents, in practice, tend to be issued when they should not be, and therefore are perceived as of poor quality.
In this respect, patents and copyrights are very different. Copyrights need not be filed or registered, and there is a very low threshold for protection. Quality of copyrights is not really an issue. Patents, on the other hand, are awarded after scrutiny by the Patent and Trademark Office. The PTO is required to refuse to issue patents that are "obvious" based on prior art, which means roughly that they are not sufficiently inventive to justify the award of the patent.
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