Protect Software with Patent or Copyright Registration

Software may be protected by a copyright registration or a patent.  Copyright protection subsists at the time the software is created.  The owner of the copyright is the author of the software, or one for whom the software is made.  The owner has exclusive rights to display, reproduce and create derivative works of the software.  One who displays, reproduces or creates a derivative work of the software without authority from the owner infringes the copyright.  However, in order for the owner to obtain damages for copyright infringement, registration of the copyright is required.  If registered in accordance with statutory requirements, the owner may be entitled to statutory damages.  For more information about copyright enforcement, see the Copyright Enforcement page.

Unlike copyright protection, wherein rights exist when the software is created, patent rights generally do not exist until a patent issues.  A patent is obtained only by filing a patent application, which may remain pending for two to four years before it’s even examined, and is subject to rejection 76-98 percent of the time in a first Office Action.  If a patent even issues, it could be years after the application is filed.

The typical cost for registering a copyright is in the order of $350 to $500 USD, which includes the registration fee to the US Copyright Office.  A patent application, on the other hand, typically costs $7,500 to $15,000 USD, and this generally does not include drawing costs and the filing fee to the USPTO.  Of course, the cost of a patent depends on the complexity of the software, and some costs may be deferred by first filing a provisional application.

Copyright protection is typically very limiting in that the protection generally protects the owner from unauthorized use or reproduction of the software code, barring any use that falls within a fair use exception.  Unlike copyright protection, patent protection generally offers a broad scope of protection, that is, it more broadly protects the functionality of the software in a patent.

Generally speaking, copyright protection is not limited to the US territory, but a US patent is territorial.  Additionally, the duration of a copyright protection is 70 years after the life of the last surviving co-author, or if the work is made for hire, 95 years after publication or 120 years after creation.  Alternatively, the life of a utility patent is limited to 20 years from the filing date, barring any patent term adjustment.

Patent protection is territorial.  If you wish to seek patent protection abroad, you may wish to consider filing a patent application before registering a copyright, as most countries outside of the United States have an absolute novelty requirement, and a copyright registration may qualify as a disclosure, which may be a bar to seeking patent protection abroad.

Controlled disclosure of software may be useful during software development, especially when employing software developers.  This may be accomplished by using non-disclosure agreements.  See sample Non-Disclosure Agreement.

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