Computer Software Protection: Patents or Copyright?

27 Software

Traditionally, the most common form of computer software protection has been copyright. However, in this more modern era, copyright is becoming less than adequate; and software patents are becoming more popular. Both should be considered when assessing the protection for your software.

Copyright law protects an original work in the tangible, fixed form in which it has been set down (e.g. the programming code of the software). Therefore, copyright only protects the expression of the work and not the idea underlying the work.

With regards to computer software, copyright can be used to prevent the total duplication of a software program, as well as copying any portion of the software code (both which would be regarded as “literal infringements” of copyright). Unfortunately, the protection provided by copyright is relatively weak, because the principle of copyright law is to protect only the expression of an idea, not the idea itself.

Software patents, in contrast, protect the creation of the inventive concept behind the works, which provides a stronger protection than copyright. Patenting is therefore an attractive method of protecting original computer programs, although obtaining it is not straight forward.

The criteria for meeting patentability are those of novelty, inventiveness (i.e. non-obvious to the skilled man in the field of the invention) and industrial application. In the past it has been difficult to obtain a software patent at the European and UK Patent Offices due to software being defined as excluded subject matter. However, due to recent case law decisions, new tests have been put in place which set out possibilities for obtaining software patents in certain circumstances which has made the process more achievable.

The choice of whether to pursue copyright protection and/or patent protection for a software invention may well come down the likelihood of success, the costs involved and the ultimate objectives of the inventors. Professional advice should always be sought to clarify the optimal approach in this complicated field of IP law.

For any aspect of Intellectual Property advice and overall strategy, please get in touch with the ip21 team.

Jeff Morris, Client Account Manager for ip21 Ltd