developers spend the bulk of their time designing the functional, input and output requirements for each logical element of the software. Most complex software is logically divisible into a number of components each of which are fluther divisible into smaller components, and so on. Only when all of these elementS and sub-elements are fully specified is coding begun. These logical (or non-literal) elements mayor may not be discernible; however, from the execution of the program, or even from a review of the source code, this makes copyright infringement analysis particularly difficult. The mOSt widely adopted test for determining whether non-literal program elements are protectible is the abstraction-filtration-comparison test. 4 Under this test, the court first dissects the StruCture of the program and isolates each level of abstraction. Thus the coun must attempt to distill from the source code the logical e1emencs and sub-elementS of the program. At the highest level of abstraction are the main or tOp-level e1emencs of the program, while at the lowest level is the code itself. At each level of abstraction, the court then filters out the unprotectible portions - such as public domain material and material that is purely functional. Finally, the court compares the remaining material to the corresponding elements of the accused program to determine whether copyright infringemenc has occurred. This test is unavoidably subjective, and thus, it is particularly difficult to predict the outcome of litigation over a copyright infringement claim involving non-literal program e1emencs. While copyright protection remains important for software owners and developers, it is a relatively narrow form of protection with imponanr limitations and exceptions. As a result, software owners have turned increasingly to other forms of protection to augment the protection they are automatically afforded under the copyright law.
PATENTS The federal courts have long held that abstract ideas and mathematical algorithms, standing alone, are not patentable inventions. Included in these categories are inventions that consist only of the "mental steps" required to perform a certain function. Since any computer program can be described as a series of steps to perform a certain function, software inventions were once uniformly rejected as non patentable
subject marrero Over the years, however, the courts have gradually chipped away at this rule, finding, for example. that softwarerelated inventions that incorporate a tangible machine,S or that create tangible inpur or output during a software-controlled process, are in fact patentable. 6 The most recent coun decisions have continued this trend, so that today, most any sofrwarerelated invenrion can be claimed in such a way that it is patentable subject matter} Like any other patent holder, the owner of a software patent has the right to exclude others from making, using, selling or offering for sale the patented invention. 8 It does not marrer whether the infringer independently created the software; indeed, even if the infringer had never even heard of the patent owner or the patented invention, the second invention may still infringe. Since the scope of a sofnvare patent is dictated by the patent's claims, rather than by the software code itself, a patent may afford far broader protection than a copyright. Although patenr protection can be broad, it is much more difficult to obtain, and much easier to lose, than copyright protection. Patent protection arises only after a patent has been granted by the U.S. Patent and Trademark Office. Given the delays caused by the current dearth of examiners qualified to review sofnvare-related inventions, a software inventor will likely wait a minimum of nvo years for a patent or, in many cases, significantly longer. The standards for novelty and unobviousness that a software invention must meet to be patentable are much higher than the simple standard of originality required for copyright protection. In addition, the failure to file a patent application in a timeJy manner may prevent the inventor from ever obtaining patem protection. 9 Failure to disclose information relevant to the patentability of the software invention, failure to list the correct inventors, and a whole host of other bases exist for invalidating a patem. One often-troubling aspect of patent protectjon for many software inventors is the disclosure requirement. To receive a patent, the applicant must disclose the invention sufficiently so that one skilled in the relevant art (in this case, sofnvare design) could duplicate the invention without undue experimenration. 1O In addition, the inventor must disclose the "best mode" of practicing the invention; in other words, if the invention can be implemented in various ways, the inventor cannot keep secret that
one he or she believes to be besc. lI In effect, one cannot both keep the invention secret and obtain a patent. By conrrast, due to the flexibility of the Copyright Office's rules for accepting software deposits, it is generally possible to obtain a sofnvare copyright registration while keeping secret much of the program's design, content and method of operation. Once a patent is issued, any competitor is free to obtain a copy of the patent and thereby attempt to "design around" the patent's claims. In many ways, patent protection is the opposite of copyright protection. While its scope is potentially broad, it is difficult to obtain, easy to forfeit and requires the software owner to make significant public disclosures concerning the function and operation of its software. The choice of pursuing a patent for a software invention should only be made after careful consideration of these limitations.
TRADE SECRETS Unlike patents and copyrights, trade secrets are protected under state law. The Arkansas Trade Secret ACt 12 is based on a uniform act that has been adopted by most states. Under the Act, a trade secret is defined as information that derives economic value from not being generally known and is the subject of reasonable efforts to protect its secrecy. 13 This may include, for example, formulas embedded in sofnvare, customer data, company bidding or business practices, coding techniques or routines, and even material that would otherwise be patentable. Unlike copyright and patent protection, a trade secret may theoretically last forever. The primary limitation of trade secret protection is that the protection ends once the owner fails to take steps reasonably calculated to keep the information secret. This severely limits the value of trade secret protection for commercially distributed software, since once such software is distributed publicly, it is, of course, no longer secret. Even those elements of computer software that are not easily viewed by simply loading and running the program, but that may be uncovered by reverse engineering. are generally not subject to trade secret protection once the program is distributed. The problem of reverse engineering can be countered (if not entirely remedied) through the careful use of licenses. If a user purchasing a license for the software agrees not ro disassemble, decompile or otherwise
rol.li \0. I/moler tODD
The ,Irkmas Lallyer lj