The author approaches the problem of software patents from the perspective of copyright, where the debate over the appropriate scope of protection for computer programs continues to rage. This debate has largely followed the copyright tradition of considering copyright as a stand-alone statute, capable of resolving all of its problems with very little reference to other legal regimes and, in particular, with very little reference to patent law. It appears to the author that patent law has also gone about its business relating to software, from Benson to Beauregard, as if patent law were essentially the only relevant player. The paper's main point is that we must start trying to coordinate between these two branches of intellectual property law in trying to find the optimal social policy balance of legal protection for computer software. The article's major subtheme is that patent and copyright lawyers must begin talking to each other now that computer programs have brought a degree of overlap to their heretofore largely distinct subject matter areas. It begins by reviewing previous work the author has done, outlining the respective subject matter areas of copyright and patent and explaining why we arrived at the traditional division of labor based on the distinction between functional and nonfunctional works. The article then summarizes the author's theory for the copyright protection of software, stepping through the various elements of computer programs that have been the subject of so much heated debate in the copyright camp but almost no debate among the patent lawyers, namely, program code, program structure or SSO ("structure, sequence, and organization"), and program interfaces. Finally, the author takes on the question of the proper application of patent law to these program elements.
Dennis S. Karjala, The Relative Roles of Patent and Copyright in the Protection of Computer Programs, 17 J. Marshall J. Computer & Info. L. 41 (1998)