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Copyright vs Patent

To compare and contrast copyright vs patent, we need to look at areas where the two types of intellectual property intersect. Computer software and databases are two areas where they routinely intersect. This legal article is written with the information technology industry into consideration. 

Copyright

  • Copyright law protects the original work of authorship fixed in a tangible medium of expression. 
  • Duration of copyright:
    • Original works created on or after January 1, 1978:
      • Sole author or joint works: The duration is the last living author’s life plus 120 years.
      • Work made for hire: The duration is 95 years from the date of first publication or 120 years from creation date, whichever is earlier.

Patent

A patent is:

  • A limited private property right granted by the government;
  • With the right to exclude others from using for a limited period;
  • In exchange for public disclosure of the invention.

Patent duration:

  • Utility patent: 20 years from the earliest filed non-provisional patent application. The provisional patent application works as a place-holder for a year, before you file non-provisional application.
  • Design patent: Only 14 years duration.
  • Maintenance fee: There is a maintenance fee for a patent, which needs to paid to USPTO within the patent duration. This maintenance fee is due at 4th, 8th, and 12th year from the grant of patent registration.

  

Copyright protection in a patent

A patent application has individual components such as claims, written description, specification, etc. The copyright office may allow copyright registration of the following:

  • “Written description” part of the registered patent or patent application. The only condition for the written description registration is the original work of authorship. 
  • Supporting articles, publications, or other non-patent related documents submitted with a patent application. However, there is no copyright protection to an idea, procedure, system, process, method of operation in these documents. This copyright protection in a patent is a prime example of importance of illustrating copyright vs patent differences.

Patent protection

  • Public disclosure of an invention for patent protection purposes is a strategic decision. 
  • If the patent application, do not result in registration, then the invention is in the public domain. Unless you have another IP protection, anyone can use this publicly disclosed invention as it is not protected by registration.
  •  If the application chances are low for receiving a patent, then a trade secret protection is a choice. This is entirely dependent on the industry and technology. Above all, a patent attorney may help you in the decision making process.

Computer program as a copyright

The copyright act defines  “computer program” as:

  • “A set of statements or instructions to be used directly or indirectly in a computer;
  • In order to bring about a certain result.” See 17 U.S.C. § 101.

A computer program can be protected as a literary work based on the original work of authorship.  

  • Computer program authorship can be “expressed in words, numbers, or other verbal or numerical symbols or indicia.” See 17 U.S.C. § 101.
  • Derivative computer program
    • Derivative computer works can be based on “one or more pre-existing works.”
    • It is a new version of a pre-existing program with augmentations or revisions. These revisions as a whole represent original work for copyright registration purposes. Very minimal revisions do not have sufficient originality.
  •  The source code of the computer program is eligible for copyright registration.
  • Elements of the work that are generated automatically by the program without author input are not copyright protected.
  • Transfer of ownership of the copyright does not automatically convey rights in the object holding the copyright. Similarly, the transfer of ownership of any material object holding the copyright does not automatically covey the copyright. A written contract agreement may provide the needed language for the transfer of both.
  • The Copyright Office does not distinguish between executable source code and comments used by the author. Computer programmers use comments for the readability of the written code work. Hence, both executable code and comments are protected for original works when applied for copyright registration.
  • No copyright protection for computer program function:
    • The functional elements of the computer program are not protected. They include the following:
      • The computer program algorithm is not protected.
      • Computer program functions are not protected.
      • System design and formatting are also not protected.
  • Screen displays: Computer program registration covers any copyrightable screens that may be generated by the code execution. However, screen displays may be copyrightable based on original work of authorship.
  • Mobile apps: Mobile and portable device apps may receive registration for the computer program.
    • There needs to be sufficient amount of authorship in the code instructions to bring about a screen display.
    • There need to be more than “subtle” changes to satisfy sufficiency criteria.
    • The screen display of the app may also be protected.
  • Video games: Separate registration is possible for two types of original work in video games:
    • Audio-visual work.
    • Literary work of computer program.
  •  Computer software is flexible and becomes protectable under different intellectual property at different circumstances. That is the reason why I wrote this legal article about copyright vs patent.

 

Patent protection for software

Patent protection for software is plausible. Since the Supreme Court provided a legal test in Alice Corp. case, the number of software-related patents decreased.

  • Test for patent-eligible subject matter:
    • First, evaluate if the patent is directed to an abstract idea;
    • Second, if the claims “contain an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application.” See Alice Corp. v. CLS Bank International 134 S.Ct. 2347 (2014).
  • Examples where ideas are ineligible for patent protection:
    • Fundamental economic practices.
      • Method of hedging risk when automated not eligible for patent protection.
    • Mathematical formulas and relationships.
      • A mathematical formula for computing alarm limits in industrial equipment is not eligible. The end result can be achieved through alternative means.
    • Method of organizing human activity.
      • The mental process of a doctor automated using computer software is not eligible.

Examples of Patent eligible software matter

  • “Improved computer memory system,” is a technological improvement and identified as patent-eligible. This improved memory system configured operational characteristics of cache memory based on the type of processor connected. This invention accommodates different processors without compromising performance. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed. Cir. 2017).
  • Overcoming disadvantages of existing content filtration system using Internet Service Provider (ISP) server:
  • “Behavioral-based virus scan,” with a flexible and nuanced filtering system to detect malicious code is patent eligible. This improves the overall computer functionality. See Finjan, Inc. v. Blue Coat System, Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018).
  • Improved accessibility of content to a mobile user: A method claim involved in launching a summary window allowing mobile users to access common features of a website. Even though, it was argued that it was just an indexing, court found that this claim is an improvement for a specific type of user. See Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356, 1363 (Fed. Cir. 2018).  
  • Three-dimensional electronic spread-sheets:
    • Method for navigating three-dimensional electronic spread-sheets is not an abstract idea.
      • It solved the technological problem in prior art spread-sheet at the time of application.
    • The claims state the following:
      • “A specific structure (i.e., notebook tabs)
        within a particular spreadsheet display;
      • That performs a specific function (i.e., navigating within a three-dimensional spreadsheet).” See Data Engine Technologies LLC v. Google LLC. , 906 F.3d 999, 1010 (Fed. Cir. 2018).

Database protection for copyright

  • Computer Database definition:
    • A compilation of digital information comprised of the following:
      • information, data, images, abstract, music, sound recordings, video, and other digitized material. See copyright office  glossary
  • The content of the database must be arranged where the information can be retrieved from the integrated system. Alternatively, the system should have the following characteristics:
    • A query function such as SQL, Python, java-script, excel, etc must be used to access the information.
    • The result should be based on the query function input. 
  • Types of authorship for computer databases:
    • Selection authorship.
    • Coordination authorship.
    • Creative material authorship.
    • Arrangement authorship.

Copyright vs patent intersection

Copyright vs Patent

Database protection for patent

Federal circuit stated that software “can make non-abstract improvements to computer technology just as hardware improvements can.” See Enfish, LLC v. Microsoft Corp ., 822 F.3d 1327, 1335 (Fed. Cir. 2016).

  • Self-referential tables improved the method of handling data by computers. 
  • The claims enabled the following:
    • The computer programmer can construct databases in new methods.
      • These methods require less modeling and configuration of tables prior to launch. See Enfish, LLC v. Microsoft Corp ., 822 F.3d 1327, 1336 (Fed. Cir. 2016).

Formulating patent office rejections based on berkheimer case law

Federal circuit noted that “whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field [PHOSITA] is a question of fact.” See Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018). This case law required examiner at USPTO to provide evidence that the claim is an abstract idea before rejection.

  • Patent examiner need to state why the claimed element or combination of elements is well-understood, routine and conventional.
  • Examples of evidence allowed to support patent rejection:
    • Express statement of the specification in the patent application or any statements during patent prosecution history. Prosecution history is the time between the filing of the application and current status date for the application.
    • Citation to court decisions, publications including books, patent manual, review article, or other relevant sources are also included.

Page Author: Bharath Konda, Esq.​

 Bharath Konda is a trademark attorney. He has a law license in Minnesota and the District of Columbia. He provides trademark registration services for individuals and businesses. You can check the Bharath Konda attorney profile page at MN state Bar Association. Further, feel free to check the attorney profile on legal information retrieval websites such as Avvo and Justia. Some of the sample trademark attorneys answered questions are on platforms such as Justia ask a lawyer platform and lawyers (dot) com platform.

2 thoughts on “Copyright vs Patent”

  1. I am in the software industry. I find the legal differences between copyright vs patent on this page a must read to anyone in my industry. I came to know from this webpage that software databases can be applied for copyright protection.

  2. You can obtain a copyright or a patent for software depending on the nature of work. Original works are protected by copyright. Further, ideas that are non-abstract, novel, and non-obvious may obtain a patent protection. This legal article is written to make sure that the differences between copyright vs patent are easily understandable to everyone. Thomas, I am satisfied that I was able to clarify your doubt through this article.

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