There is no legal or conclusive definition for a software patent. A suggested definition of software patent has been proposed by the Foundation for a Free Information Infrastructure (FFII) as being a “patent on any performance of a computer realized by means of a computer program”.

Software is a virtual or intangible program, which is installed as system software or application software. System software is a basic requirement for any computer, as it controls all the major functions and integrates all components into a unitary system, such as an operating system. Application software serves more application based purposes, such as creating databases and spreadsheets or processing images such as Microsoft Office.

Software enjoys dual protection under copyright and patent law, but which law prevails other depends on the strategic advantage sought by the applicant. “Copyright law protects the specific code a programmer writes, but it does not protect the idea behind that code and it does not prevent it from being recreated with similar functionality with different code by someone else. Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved”.

Patent law prevalently dominates the applicant’s choice over copyright because of its obvious advantages, but the irony is that the patent law does not allow software protection in toto.