Image Courtesy: BusinessSarah via FlickerTime and time again, we've discussed that your intellectual property (IP) is an invaluable aspect of your business. As more and more tech startups gain prominence, a significant issue needs to be addressed regarding protecting your IP: should software be protected by copyright or patent? For years, companies believed that copyrighting software was the logical method to protect it from being imitated. Since then, it has become clear that copyrights have become a little more ambiguous when it comes to whether someone copied an idea from a piece of software.

Patents have moved in as a better option; or at least had until recently. After the latest Supreme Court decision on the issue of software patents, it will become increasingly hard to receive one. There are many considerations made while reviewing a patent and an abstract concept cannot be patented merely by virtue of using a generic computer. The recent Supreme Court decision in Alice Corporation v. CLS Bank held as much unanimously. In this case Alice Corporation's software patent that mitigated risks with transferring funds was invalidated. According to the court, the software merely applied a commonly used economic practice through a computer.

Copyrighting Software
Remember to keep in mind that a piece of software is automatically copyrighted the minute it is created as any other creative work. Regardless, it's always better to register your copyright with the US Copyright Office so you have a public record and stand on firmer ground if you sue over infringement. The problem with copyrights for software is that it is considered a literary work for the sake of compartmentalization and many courts do not understand programming language and can sometimes get confused as to what really constitutes copying of the work.

When this happens, it can throw infringement cases into a state of ambiguity. It also shows a slight weakness in copyright law for software based on the concept of protecting on its original fixed form rather than in concept. In that regard, you might want to consider looking into the option of a patent. When combined with a copyright, it's going to give you more thorough protection that you need.

Why Patents Matter for Software
Over 80 years ago, the Supreme Court ruled that laws of science and nature could not be patented. By the 1990s, the idea that software was a law of science started to change based on the idea of software being the equivalent of a machine running other machines. It was a revolutionary thought that helped shape the ability for software makers to gain patents for more thorough protection.

This protection becomes enhanced thanks to patents helping protect a software concept for 20 years after filing. This is considerably less compared to the duration of a copyright but considering the fast pace at which technology evolves, 20 years is ample protection. Although patent protection seems like a much better option it should be noted that the bar has been raised by the Supreme Court and fewer applications will make the cut.


Need to talk about copyrights and patents for software? We will always keep you educated on future developments in the world of intellectual property.

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