Internal link turn – confusion kills econ innovation and causes policy failure
Moffat ‘4 (Viva R. Viva Moffat began her academic career at the University of Denver Sturm College of Law as an assistant professor after seven years in private practice and one year as a visiting professor. While in law school at the University of Virginia, Professor Moffat was editor-in-chief of the Virginia Law Review. After graduation, she clerked for Judge Robert R. Beezer of the U.S. Court of Appeals for the 9th Circuit in Seattle. Following the clerkship, Professor Moffat was an associate at Keker & Van Nest LLP in San Francisco. "Mutant copyrights and backdoor patents: the problem of overlapping intellectual property protection." Berkeley Tech. LJ 19 (2004): 1473.
As described in Part III, copyright and patent law now overlap in two significant areas: computer software and mask works may receive both forms of protection simultaneously. Overlapping protection in these areas disrupts both the patent and copyright bargains. Each of these bargains falls apart when an alternative form of protection is available for the invention or creative work. When both patent and copyright protection are available, the public will be deprived of some of the benefits that would otherwise flow from the grant of a patent. If a patented invention is also protected by copyright law the inventor will still be required to disclose the invention fully as required under patent law, 200 but copyright law may prevent later inventors from developing and profiting from improvements. 20 1 Copyright law will stymie the right to make improvements on a patented article because even if patent law would permit the improvement, under copyright law the improved version likely would be considered substantially similar and therefore infringing.20 2 Thus, while the patentee continues to receive all of the benefits of patent protection when she obtains a copyright as well, the public does not receive all of the benefits of patent law when overlapping protection is available. Prohibiting improvements to patentable items affects another of the goals of intellectual property policy: furthering a competitive economy.203 In the patent context, the rules concerning blocking patents and the reverse doctrine of equivalents permit others to make and patent improvements on previously-patented inventions.20 4 The ability to patent improvements is considered "socially desirable" because, in the patent context, incremental improvements may result in enormous efficiency gains.20 5 Improvability permits greater competition, reduces barriers to entry, and therefore ameliorates some of the harm caused by granting patent rights. Using copyright law to limit the ability to make improvements to patented articles thus disrupts and distorts the intellectual property balance. By securing both forms of protection, the programmer or software engineer (or her employer) also gets the benefits of copyright law: an extended period of medium-strength copyright rights and the right to prevent others from making substantially similar copies, even if those include novel and nonobvious improvements that would otherwise be patentable. 20 6 The public may get increased production of software, but it is deprived of a variety of the rights that generally flow to it from the grant of copyright rights. Even if another programmer independently creates a substantially similar program-something that copyright law does not condemn-the patent rights would prohibit such activity. 20 7 In addition, as long as the patent is in effect, no one may make fair use of the program, even though such use would be permitted under copyright law.208 Finally, the availability of multiple forms of protection in the patent/copyright context (or within any other area of overlap) makes it impossible to evaluate the incentive that has been provided. If both patent and copyright protection are available, Congress will not be able to determine whether the copyright incentives or the patent incentives spurred the new creation. 209 It may be, for example, that copyright protection whatever defects it may suffer-provides sufficient incentive for the creation of new software. 210 If that is true, the addition of patent protection for software was not only unnecessary but socially harmful; unnecessary because enough software may be created without the benefit of patent law and harmful because to provide greater rights to the inventor deprives the public of some of the rights it otherwise would receive. This is problematic from a utilitarian perspective. The utilitarian theory of intellectual property protection prescribes that rights are to be granted at the lowest cost to society. Overlapping protection raises a significant risk of overprotection by granting more rights and imposing greater costs than necessary to encourage the production and dissemination of inventive and creative works.