Is software more like a literary work or an invention? Individuals and
courts have debated this question for decades. One's answer to this
question generally determines whether they believe copyright or patent
law should protect software.
This article will introduce the reader to the principles of copyright
and patent protection as well as provide guidance as to which form of
protection is appropriate for their particular software.
Copyright Basics
Copyright is a form of protection provided by the laws of the U.S. to
the authors of "original works of authorship," including literary,
dramatic, musical, artistic, and certain other intellectual works.
This protection is available to both published and unpublished works.
Copyright laws provide the owner with exclusive rights over the
reproduction, preparation of derivative works, distribution, and
public performance and display of copyrighted work.
Copyright protection exists once a work is created and "fixed in
tangible form." That means that copyright comes into existence as soon
as a work is written down or otherwise recorded. However, copyright
registration is generally required to obtain damages in an
infringement action against one who copies the work.
Patent Basics
A patent on an invention is the grant of a property right to the
inventor, issued by the United States Patent and Trademark Office.
Generally, the term of a new patent is 20 years from the date on which
the application for the patent was filed in the United States. U.S.
patent grants are effective only within the United States, U.S.
territories, and U.S. possessions.
The right conferred by the patent grant is "the right to exclude
others from making, using, offering for sale, or selling" the
invention in the United States or "importing" the invention into the
United States. There are three types of patents: utility, design, and
plant. Utility patents may be granted to anyone who invents or
discovers any new and useful process, machine, article of manufacture,
or compositions of matter, or any new useful improvement thereof.
Design patents may be granted to anyone who invents a new, original,
and ornamental design for an article of manufacture. Plant patents may
be granted to anyone who invents or discovers and asexually reproduces
any distinct and new variety of plants. Software patents fall within
the "utility" patent category.
Advantages & Disadvantages
In deciding whether to seek copyright or patent protection for
software, developers often make the decision based on the degree of
difficulty required in obtaining the protection rather than the scope
of protection afforded.
Copyright protection exists once a work is created and "fixed in
tangible form." The additional step of filing for registration with
the Library of Congress can be performed by an attorney for under
$500. Copyright protection can generally be obtained in three months.
Alternatively, patent protection does not exist until a patent is
issued. Generally it takes approximately two years from the date of
filing a patent application until the issuance of a patent.
Additionally the cost of preparation and prosecution of a software
patent application may cost $6,000-$15,000.
While patent protection takes longer and is more expensive than
copyright protection, the protection is much broader. Under patent
protection the software developer may prevent competitors from using
the patented software innovations in their products even when they are
not actually copied. On the other hand, copyright protection generally
only allows the developer to prevent copying of the object or source
code. It does not protect against copying of any "idea, procedure,
process, system, method of operation, concept, principle, or
discovery" in the software. Additionally, copyright does not protect
against the independent creation of similar works.
To obtain the broad protection afforded by patent law there are
several requirements that most software products cannot meet. The
requirement that the invention be new and not obvious causes the most
problems for software patent applications. However, this requirement
aids in the analysis as to whether one should pursue patent or
copyright protection.
Seek the Assistance of a Patent Attorney
If your software meets the requirements for patent protection then it
is generally a significant advance in software engineering and the
developer should seek patent protection. All other software should be
protected via copyright. Ultimately many factors must be analyzed in
determining the appropriate form of protection for software and
developers should consult with a patent attorney for assistance.
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