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Software Copyright and Patent Protections

In general, both copyright and patent laws provide different levels of protection for computer software. Additionally, depending on the aspects of software that an owner wants to protect, these two areas of law will apply differently. Furthermore, securing a patent is a more rigorous process. However, a patent does provide a greater degree of protection. On the other hand, obtaining a copyright is less difficult, but it also provides a thinner veil of protection.

What Protection Does Copyright Law Provide For Computer Software?

The Copyright Act of 1976 is codified under 17 U.S.C. sections 101 et seq. Traditionally, copyright has been the common form of protection for computer software. However, copyrights only protect the expression of a work, and not its underlying idea. Copyrights have been instrumental in preventing software piracy and infringement of related works. The protection applies to software because the underlying computer code is similar to the types of writings the law protects. So, copyright holders can protect their software much like other literary works (e.g., books, scripts). Copyright protection essentially provides broad protections for software. It grants the typical copyright authority depending on the nature of the software. The courts have grouped software with other literary works and provided copyright protection accordingly. There also exist inconsistencies in court decisions applying the Copyright Act to software. This difficulty arises because the legal community often lacks the technical expertise necessary to properly classify software. For instance, where a judge cannot understand the program’s code, he or she cannot determine whether another infringing program’s code is substantially similar. It is necessary to establish substantial similarity to find copyright infringement. Therefore, the lack in technical background has led to unclear definitions as to what constitutes software copyright infringement.

What Protection Does Patent Law Provide For Computer Software?

There are various laws, regulations, policies, and procedures which apply to the patent process. For example, the Patent Act is codified under 35 U.S.C. sections 1 et seq. With growing cyber security concerns, patents are quickly becoming the preferred form of protection for software. A patent may provide another layer of protection for computer software. However, to achieve patent protection, software must qualify as: (1) patentable subject matter; and (2) nonobvious. Accordingly, patent protections only extend to new and useful processes. Therefore, while software theoretically qualifies for patent protection, it must demonstrate that it is also a new and useful process. Additionally, any such process cannot merely be a concept, but must also have real world value. Again, the lack of technical expertise in the legal field has led to some difficulty as the judicial branch struggles to apply legal standards to the technicalities.

At the Law Offices of Salar Atrizadeh, we are knowledgeable and experienced in copyright and patent protection. If you are looking to secure protection for your software, you may contact us to speak to an attorney today.