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which today s formula does not! In any case, the formula has always been a closely and successfully guarded secret, and resides in a bank vault in Georgia. Writers of software can protect their work by keeping the code secret. In the early days of computing, customers often received source code to the software they ran. However, as software has become appreciated as valuable intellectual property itself, software publishers have begun to regard their source code as a trade secret. What gets shipped to the customer today is almost always the object code, in machine language, which is not easily readable by humans. And what the customer buys today is not ownership of the software, but a license to use the software; the software supplier remains the owner of the intellectual property. Intellectual property can be protected as a trade secret provided the owner of the secret takes care to protect the information. The owner must restrict access to the information, so that only those with authorization can get to it. The source code could be kept in a secure archive, for instance. The owner must also limit access to the information. Even though the code is in a secure archive, the owner also must be vigilant in providing access only to authorized individuals. The owner must also require those who have access to the information to sign an agreement not to disclose to others anything about the code. Such an agreement is called a nondisclosure agreement, and it may be required of employees as well as any outsiders who might have a need to see the source. To protect their trade secret rights, the owner must also mark any material related to the secret as proprietary. The source code itself, training manuals, and other documentation should include a statement that the software is proprietary. A trade secret can last indefinitely, and it costs nothing except being serious about protecting the secret. The courts will enforce the owner s rights to the trade secret, as long as the owner remains diligent in efforts to protect the secret. However, if the owner becomes sloppy about security surrounding the secret, the owner can lose the trade secret rights. Suppose, for instance, that (perhaps mistakenly) the owner posts the source code on a web page for a while. Such disclosure of the secret to the public could invalidate any future claim of the owner to legal protection of the secret. Patents A patent protects an inventor s intellectual property for a limited period of time. After 20 years, the patented idea becomes public property, and anyone can use it. During the lifetime of the patent, the patent gives the owner the right to prevent others from making or using the invention, unless the owner grants permission. The purpose of seeking a patent, which often costs many thousands of dollars in legal and filing fees, is to gain protection from competition, so the inventor can bring the invention to market and profit from it. A patent is a short-term monopoly right granted to reward the genius of the inventor. To be patentable, an invention must be novel, nonobvious, and useful. Many suitcases today have wheels on them, so they can be rolled about as well as carried. If someone tried to patent a three-wheeled suitcase, arguing that only two- and four-wheeled suitcases existed prior to the patent application, the patent would probably be denied as being obvious. A three-wheeled suitcase might be novel, and it might be useful, but once someone comes up with the idea of a wheeled suitcase, the number of wheels seems to be a minor detail something obvious to someone in the business of designing suitcases. Since 1981, software has been patentable in the United States, if the software is part of a patentable device. In general, software is not patentable because scientific truths and the mathematical expressions of scientific truths are not patentable. The 1981 case involved a patent for a rubber curing device which incorporated a computer for control. Since software was part of a patentable rubber molding device, the software was patentable. Mathematical algorithms remain unpatentable, so a new sorting algorithm could not be protected by a patent (It could be protected as a trade secret, of course.). Since 1981, software has been patentable if the software is part of an invention of a new machine or process. A key to making the distinction has been whether the software manipulates measurements obtained from real-world sensors. A program controlling a toaster, or a robotic warehouse, for example, would likely be patentable. Patents granted to software have not been as protective as patents granted to more traditional inventions. When deciding whether an invention is novel, patent examiners usually rely on inspection of earlier patents. Since software has only recently become patentable, the prior art of the field is difficult for examiners from outside the field to learn. As a result, many bad patents have been issued for software, with the result that software patents are more subject to challenge than other types of patents, and the individual holding a software
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