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Patent v. Copyright Protection for Software

Developers of computer software programs and apps often ask about the best form of intellectual property (IP) protection for the software. Software may be protected by a number of different forms of IP protection, but the two most significant types are patent and copyright. The scope of protection provided by the patent and copyright laws is significantly different. In simplified terms, copyright provides legal protection against someone making a substantially identical copy of the software, but will not provide protection against someone who merely copies the ideas or functionality of the software to create another software product. In contrast, a patent can protect the ideas and functionality implemented in the software from being used in another software product, without requiring that allegedly infringing software be a substantial copy. Obtaining a patent on a software program is typically more difficult than obtaining a copyright on the program, as a copyright will often arise upon the creation of the software without taking further steps, although registration of the copyright with the Library of Congress is recommended. Procuring a patent on software requires filing a patent application in the U.S.P.T.O. and convincing an examiner that the software is sufficiently different from previous software. Patent and copyright protection of software is not mutually exclusive, and therefore both types of IP protection can be used to protect a software product.

 

Submitted by Attorney Jeff Proehl

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