Symbols, Systems, and Software as Intellectual Property: Time for CONTU, Part II?

68 Pages Posted: 28 Jun 2017

See all articles by Timothy K. Armstrong

Timothy K. Armstrong

University of Cincinnati College of Law

Date Written: March 2, 2017

Abstract

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014), extended far more expansive copyright protection to functional software components than precedent suggested. The result of these developments has been a new period of uncertainty regarding the existence and scope of intellectual property protection for computer software.

The root of the problem lies in Congress’s relative inattention to the question what legal regime (if any) should govern the creation of computer software. Congress extended copyright protection to software largely without grappling with the consequences of applying a body of law designed to promote creative expression to functional, useful code. Meanwhile, Congress has spoken only obliquely to the question whether software warrants patent protection. The turmoil in the courts reflects a general lack of legislative guidance. This article asks whether the time is ripe for remedial legislation and suggests some questions that ought to guide Congressional inquiry.

Keywords: copyright, patent, software, section 101, law reform

JEL Classification: K39, O34, O38

Suggested Citation

Armstrong, Timothy K., Symbols, Systems, and Software as Intellectual Property: Time for CONTU, Part II? (March 2, 2017). Michigan Telecommunications and Technology Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2993295

Timothy K. Armstrong (Contact Author)

University of Cincinnati College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States

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