Protection of Computer Programs: Resurrection of the Standard
John J. McHugh · Journal of legislation · 1974
By constitutional mandate, Congress is authorizedTo promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."Even though this directive has been statutorily implemented, 2 and that statute often amended, 8 the constitutional purpose has yet to be fully satisfied.Thus far, the thrust of Article 1, section 8, clause 8 has been hampered by patent laws that are antiquated in focus, 4 haphazard in application, 5 and ineffective in protection.'These deficiencies are obvious in respect to that most modem "useful art," the computer program.This note will examine the modes of protection available for the computer program and inquire why, in light of the above statutes, resort must be had to a common law tort remedy: the "trade secrets" doctrine.7 In that regard, the continued vitality of patent protection will be evaluated.A conclusion will follow that patent protection, if it is to exist at all, must ultimately derive from the courts, not the legislature. II. Protection of Computer Programs A. GenerallyAny successful scheme for the promotion of technical progress must be predicated upon protection of the invention within a competitive structure.It should provide the inventor the recovery of his investment and enable him to secure a reward for his genius.'On a larger scale, it must foster the influx of speculative capital into the marketplace, 9 without which progress is piecemeal at best.Concomitantly, the protective scheme must not be so severe that reasonable competition is thwarted.This is especially so in the computer industry.I U.S. CONST.art.I, § 8, cI.8. 2 35 U.S.C. § 1 et seq.(1970).3 For a detailed account of the legislative history of Title 35, see Federico, Commentary on the New Patent Act, 35 U.S.C. A. 1-70 (1954).4 See 119 CoNG.Rc. 2865 (daily ed.April 17, 1973) '(remarks of Rep. Owens).5 Id.6 Fully 72 percent of the patents litigated in the Federal courts of appeals are held invalid, and fewer than 20 percent of the litigated patents are upheld as valid and infringed....Such a high rate of invalidity means that many more patents issue than are warranted.Simply put, this means that the Patent Office has not been doing its job of weeding out bad and unjustified patents.Id. at 2866.