Computer software is generally patentable subject matter. Patentable software encompasses that used on PCS, mainframes, corporate networks, or the Internet, or in any specialized or dedicated application such as guiding a cell phone’s operations, controlling a microwave oven, energizing an LCD display on a watch, etc.

Software patents are drafted to protect the new, novel and non-obvious combination of essential functions performed by the software. The essential functions may be set forth as method steps or in a hardware implementation. Thus, a properly drafted patent will enable the owner to exclude from the market competing programs, possibly having a substantially different structure, provided that the competing programs perform the functions (or equivalent functions) set forth in the patent claims.

A valid software patent will generally be very valuable if the patented software has a long expected commercial life span. The patent can be used to perform its constitutional function of excluding would-be competitors from making, using or selling infringing software during the entire term of the patent. Improvement patents obtained on modifications to the software during the original patent term may lead to other patents, thus increasing the entire term of patent protection.

If the relevant industry is moving so rapidly that any particular piece of programming has a limited commercial life span, a patent may not be worth the price of the application process. A patent might not issue on a software application until after the software has outlived its usefulness. In that event, relying on copyright and possibly trade secret protection may be the best business strategy. Trade secret protection is enforced in part by contractual provisions set forth, for instance, an so-called shrink-wrap and click-wrap licenses.

Programmers are familiar with practical (as opposed to legal) protections. Various software locks may be written into a program, requiring a password or other key for access. A program may be designed to shut down if used in an unauthorized way. Programs used on the Internet might trigger an automatic alarm signal transmitted over the Internet to a monitoring site.