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It is challenging to determine whether computer programs (software, apps, or games) are copyrightable, patentable, or both. Software patents are associated with inventions that are functional and expressed in the form of a product or process, whereas software copyrights are associated with the expression of an idea and not an idea itself. Computer programs and software are considered copyright literary works, whereas the format or look of a database or website could be registered for copyright of its visual appearance. Copyright registration is especially useful to shield unauthorized copying of software source code and to pursue infringement lawsuits. This YIP site provides references and facts to consider. However, one should consult with an attorney skilled in this area for any clarifications.
Both patent and copyright law may apply to the intellectual property (IP) defense of certain facets of computer software. A computer software patent is often referred to as a Computer-Implemented Invention (CII) when dealing with a patent attorney or agent registered with the USPTO. See Legal Analysis to Support Proposed Examination Guidelines for Computer-Implemented Inventions for further details. Refer to the Manual of Patent Examining Procedure (MPEP) and the Compendium of U.S. Copyright Office Procedures as further IP references. For example, the MPEP offers Section 2161.01 regarding Computer Programming and Computer Implemented Inventions, while the Compendium offers Section 721 Computer Programs, Section 722 Apps, and Section 807.7(A) Videogames.
The question of which IP to apply to one’s new software comes up frequently. The answer is not so obvious and often requires the assistance of an IP attorney specializing in software. In its simplest terms, both patents and copyrights could apply to most computer software including mobile apps and computer games. However, as apps are more akin to the latest fashions in that they may change or morph with the seasons, trademark registration is a supportive IP utilized to protect the branding and product source identification of such transformative apps. In simple terms, patents protect the idea, while copyright protects the written code. Trade secrets and licensing are other IPs that could apply to computer software protections. See list below for determining which type of IP could apply.
· Utility patent could protect the underlying algorithm function of computer software.
· Copyright can protect against unauthorized copying of software script/code and even database formats.
· Copyright term of protection is 70+ years versus 20 years for a utility patent.
· Copyright is used for most computer software copyright registrations, as well as for format/appearance of a database or website.
· Trademark may apply to the software product branding name.
· Trade secret is another option for protection of computer software.
U.S. courts have differentiated between the purposes of copyright and patent laws related to computer software. Copyright protects the expression of the computer software code and appearance of its formatted view. Copyright also permits independently created authorship that is identical to another copyrighted work by coincidence, while patents must be totally novel and of a single authorship party.
The main shortcoming of copyright is that it does not protect the algorithm or the underlying sequence of computer commands, only the computer code itself. Broader protection could be granted by a patent that demonstrates novelty, non-obviousness, and an inventive aspect associated with the software program or process. Back to the common question of which intellectual property could protect your computer program, more than one type could apply. That’s why it is important to confer with an attorney specializing in computer programs and intellectual property for expert advice.
Computer Codes and Software
Circular 61: Copyright Registration of Computer Programs (U.S. Copyright Office)
Writing a Software Patent Application (IP Watchdog)
Four Steps to protect your App and Yourself (LegalZoom)
Guide for Protecting your App with a Patent, Trademark, or Copyright (App Developer)
FL-108: Games (U.S. Copyright Office)
IMPORTANT LEGAL NOTICE: Information and content from the YIP website, programs, or services are provided for informational purposes only. Any information provided should not be considered legal advice. YIP seeks only to facilitate related information and community connections to further IP awareness. Any information received from YIP should not substitute for securing legal advice from a licensed attorney.