Patent protection may be better for the following:

1) Its term is shorter - 20 years from date of filing - rather than the long protection given to copyright (life of author + 70 years, usually)

2) Patent protection is tougher to obtain, with thresholds of utility, novelty, and more importantly, nonobviousness. Although computer software qualifies as eligible subject matter (a process, tied to a machine or transformation), the other thresholds likely limit patentability for many software programs, especially those that are mere copycats or minor improvements of other programs.

3) Blocking patents foster more cross-licensing and improvements than derivative works under copyright. When one inventor creates new patentable software based on another inventor's software, patent law creates incentives for both to cross-license. On the other hand, an unauthorized derivative "author" of a new software program based on a copyrighted software loses all IP rights.

4) Patents encourage open disclosure of claims and how to use and make the computer program. That encourages others to learn about new software and gives them opportunities and the know how to make better software. Copyright, meanwhile, provides little incentives for others to experiment and use new software (besides fair use, which is generally inapplicable for this).

The drawback about patents is the extensive protection, especially in distribution (prohibiting sale and offering for sale). The newly passed America Invents Act will play some role in how patent protection is used for software. For all you IP junkies, do you think patent protection is better or worse than copyright for computer software?

-- ThomasHou - 03 Oct 2011