The Know-How Gap in the TRIPS Agreement: Why Software Fared Badly, and What Are the Solutions

The TRIPS Agreement establishes universal minimum standards of intellectual property protection that will enable software producers to repress the wholesale duplication of their products in the global marketplace. These standards, however, will not effectively require World Trade Organization member states to issue software patents or to provide copyright protection for the functionally determined components of computer programs that account for most of their commercial value. Nor does this Agreement prevent the reverse engineering of technical ideas by honest means if competitors express their analytical results in independently created programs. This Article discusses the impact of the TRIPS provisions governing patents, copyrights, trade secrets, and unfair competition, with a view to demonstrating that subpatentable applications of modern technical knowhow to industry remain largely unprotected in the worldwide intellectual property system.

The Article concludes with a summary of proposals for a new intellectual property regime, built on modified liability principles, that would protect functionally determined components of computer programs and other forms of subpatentable innovation without fostering the barriers to entry and other social disutilities of traditional legal monopolies.