Patents, in contrast, protect against the unauthorized making,
using, or selling of a patented invention. Thus, if an inventor
independently develops an invention that is clearly within the
boundaries of a claim of a valid and enforceable patent, the making,
using, or selling of the device by the second inventor is prohibited.
This prohibition exists regardless of whether or not the second inventor
made the later device independently or by copying. If the second
inventor did make the infringing device through copying, however, courts
may, for example, award treble damages.
The U.S. Supreme Court has decreed that most computer programs are
protectable by patents in the landmark decision Diamond v. Diehr, 450
U.S. 175 (1981). See generally, Hulbert, Special Considerations for
Obtaining and Litigating Software Patents, 4 Software Law Journal 1
(1990). The liability of the independent software developer for
infringement has caused increasing concern. See, e.g., Software Flood
the Patent Office, Infoworld at p. 43 (Sept 30, 1991).