Computer Software and Copyright

19. Patent or Copyright, Which Is the Best Way to Protect a Computer Program?

The most basic difference is the term of protection. As discussed earlier copyright protection can exist for 50 or more years. Patent protection, however, lasts for only 20 years from the date of filing.

This does not imply that patent protection is inferior. For one thing, patent protection can apply to the method or process. Remember that copyright protection does not protect the method, but the expression of the method. Patent law, on the other hand, can protect the method as well. Additionally, patent law has international implications that may afford a program greater protection.

However, while copyright protection is available the instant a work is fixed, patent protection applies only after the application is approved, which can take 18 months. Furthermore, statutory damages and criminal sanctions may not be available under patent law. A final consideration is cost. A copyright registration application is very inexpensive and simple while a patent application for software can be extremely costly in terms of both time and money.

There are finer distinctions which may make one or the other more advantageous to pursue. These are beyond the scope of this guide. In some cases a patent should be filed while in many others copyright protection suffices. Once again, the Patent Department will determine which method of intellectual property protection is best for a particular program.

* Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995.