This past Monday, December 3, 2007, I gave a talk in Cartagena, Colombia on the Patent/Trade Secret interface in the protection of software. I was invited to do so by ASIPI (Interamerican Association of Intellectual Property) at their XIII Work Sessions and Administrative Council Meeting, held in Cartagena on November 30 to December 5. This meeting featured seven panel discussions, one of which (Panel 4) dealt with the controversial topic of “Software Protection via Patents.” It was to explore the controversy from business, academic and governmental perspectives and also “discuss alternative ways to protect innovation in the software industry.” With James Pooley (AIPLA President) as moderator, Dick Wilder of Microsoft represented business and Giancarlo Marcenaro of the Colombian Superintendence of Industry & Commerce spoke for government. Protection of alternative ways was my topic.

The paper, which I prepared for the panel discussion and which will be translated into Spanish and published in ASIPI’s Derechos Intellectuales series, dealt first, because of the title, with the development of software patents, the current USPTO regulations, current cases shaping software patent protection, the differences between US, European, Japanese, and Korean software patent protection. It also gives an example of software patent enforcement, examines the impact of software patents on innovation and entry into the software market, and briefly outlines how Open Source Software Licenses can affect software patents.
The crux of my presentation, however, was that all IP categories can be enlisted in a complementary, rather than alternative, way to protect software. I advocated reliance on trade secrets while obtaining copyright as well as patent protection on software. Finally, my paper postulates that sui generis protection would be the most suitable form of protection, as was proposed when the issue first arose in the mid-sixties.