by Gregory J. Maier

In intellectual property terms, software is a true hybrid. Although software has its origin in writing, it also possesses functionality, a property that clearly distinguishes it from ordinary writings. To write software, is to formulate instructions for reconfiguring a collection of electronic logic gates and memory cells into a virtual structure capable of accomplishing a predetermined objective. Thus what begins intellectually as a form of coded writing ultimately operates as an electronic network. The same, certainly, cannot be said of other types of writings, which are simply not capable of reconfiguring logic gates, but only of expressing intellectual concepts. Similarly, other types of electronic networks are not capable of existing entirely in the form of writings. Software is a hybrid because it both expresses intellectual concepts and has the power to physically implement them with the aid of a computer.
It is the hybrid nature of software that causes its failure to fit neatly into any one existing category of intellectual property, resulting in seemingly endless confusion as to how it may best be protected. The purpose of this article is not to place software into any particular category of intellectual property protection, but rather to identify the hybrid nature of software and to demonstrate that the very different intellectual property concepts embodied within software can be coextensively protected by patent, copyright, and trade secret. This article advocates a prospectively straightforward approach to protecting the various types of intellectual property found in software: an approach in which patents protect functioning implementations of concepts, copyrights protect modes of expression, and trade secrets protect functional aspects when patent protection is unavailable or undesirable.
As patent protection for software has experienced a more troubled legal history than copyright or trade secret protection, somewhat more emphasis is placed on historical development in this area than in the other areas.
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