Posted by Anton Hughes on Thursday, September 08, 2005 with No comments
Having your cake and eating it tooI've been doing a little bit of digging into trade secrets and the importance of them to software. Then it hit me - there is a real overlap issue between patents and trade secrets for software. The inspiration for this idea came from this page, combined with what I read about the problems of overlapping protection in the "mutant copyrights and backdoor patents" but I think the idea is fairly original...
The idea is that the source code of software is generally kept secret, and is hence a trade secret unless disclosed (that is then, for all proprietary software). This means that when proprietary software vendors apply for patents, they not only get the statutory monopoly period associated with the patent, but they also get to keep the source code monopoly as a trade secret in perpetuity. Thus the usual bargain wherein the public get the benefit of having useful information released into the public domain at the end of the patent monopoly period is actually not happening completely, because the implementation which gave rise to the patent is still protected by trade secret law.
This gives real strength to the proposition that the disclosure requirement for software patents should require a disclosure of source code of the implementation of the patented algorithm.