Despite the many benefits of a patent, many people still wonder: is software best protected by a patent or a copyright? The answer depends on the breadth of protection you want.  Copyright registrations are inexpensive and fast to get, but protection is limited to the exact expression or implementation.  Software patents are subject to lengthy examinations and complex tests of patent-eligibility, novelty, and non-obviousness. Once granted, the software patent is entitled to a presumption of validity and can provide protection beyond your code expression. But don’t stop there, you can weave in trade secret protection for the code running on your servers. Read on to learn more about how to weave the richness of the IP laws to help your company!


The digital economy is based on technology, and much of its value lies in software. Software is used in almost all sectors of the economy, and this dependency has implications for intellectual property laws. Until the late twentieth century, innovation largely took place within the hardware, and this was due to the physical objects.

With advanced semiconductor technology, the physical object no longer constitutes the only basis of innovation. As a result, the nature of innovation has shifted to software, allowing venture capitalist Marc Andreessen to declare in 2011: “Software Is Eating the World.” Unlike in the past, software is now protected by patent laws in many jurisdictions.

What Is A Computer Software?

Computer software is a set of instructions that enable a computer to perform specific tasks. Software is a collection of data, programs, or instructions that a computer uses to perform certain tasks. Its opposite is hardware, which describes the physical aspects of a computer.

Computer software can refer to programs, applications, scripts, or both. Software is a dynamic part of the computer, which can be installed and removed as needed. While application software is specifically designed to fulfill a need, system software is intended to run the computer’s hardware and provide a platform for applications to run on.

Importance of software

A computer is useless without software, which allows it to perform input, processing, and storage. In addition, software is necessary to make a computer work, as without it, the hardware cannot function properly. 

Typically, computer software is classified into two main types: system software and application software. System software contains the operating system and database management systems, while application software enables an application to perform specific tasks.  With the emergence of Software as a Service (Saas) solutions, the processing is done mainly by servers on the cloud, and the results transmitted to the computer for rendering to users.

Application software is the most common type of software. It performs a particular function for the user, or it runs another application. It may be self-contained or comprise a suite of programs that perform a specific function. Modern applications include word processors, graphics software, database management programs, office suites, and communication platforms.

Software Protection As Works Of Authorship Under The Berne Convention

The Berne Convention protects the rights of authorship over the creation and dissemination of works. This convention contains provisions that stipulate minimum protection of works, ensuring that the creation and dissemination of works by nationals of one Contracting State are protected by other contracting states.

The Convention also protects works in the public domain, but does not apply retroactively. The Berne Convention was adopted by the international conference of 1886 in Bern, Switzerland. It was amended in Berlin, 1928 in Rome, Brussels in 1948 and Stockholm in 1967. It is signed by the signatory countries of the Berne Copyright Union. It provides automatic protection for works originating in one of the Signatory States, as well as works of authorship produced by nationals of other Union countries.

While the Berne Convention does not specifically refer to computer programs, it suggests that they are works of literature. The Convention does not define literary works but does recognize the notion that they are protected in certain situations. Accordingly, computer programs are protected under the Convention as works of literature, and this protection is valid worldwide

The Berne Convention protects the rights of authors and other third parties. Its three fundamental principles are that works originated in one of the member countries of the Berne Union receive equal protection in all Contracting States.

The Berne Convention also contains provisions defining the minimum level of protection that must be provided and a special provision for developing countries. The Convention also lays out the minimum protection that works in different countries must receive before they become protected.

Under the Berne Convention, countries are obliged to protect the rights of authors in other member countries. However, countries not covered by the Berne Convention may have different protection periods.

Therefore, the country that first published a work under the Berne Convention may choose to limit the protection period for certain types of works. This may result in a loss of the author’s rights. The Berne Convention is also the most widely used intellectual property law in the world.

The Berne Convention does not specifically refer to computer programs, but the TRIPS Agreement requires that WTO members protect computer programs as works of literature. Computer programs are often the product of multiple contributors, which is why countries have differing authorship rights. For this reason, the Berne Convention is not intended to protect computer programs as works of literature. Instead, WIPO should focus on harmonizing copyright and patent laws.

Although the Berne Convention suggests that computer programs can be protected as literary works, it is unclear what the definition of a literary work is. There are exceptions, including the use of works of literature for educational purposes and reproduction for educational purposes.

Further, computer programs are not generally protected as works of literature under the Berne Convention, despite being the product of human creativity. This provision should be amended to reflect the way that authors use patents to protect their creative works.

The Berne Convention provides protection for works of literature in several countries. It is based on three basic principles: the rights of the author and the right to publish a work. It also stipulates that works originating in a country that signs the convention are given the same protection as those of its own citizens. For example, works created by a citizen or resident of another country must be recognized as works of literature in that country.

The duration of the copyright depends on the country in which the work was created and its category. For instance, if it was created in a Berne country, the rights granted to the author may not be transferred to the author of the work in another country. Nevertheless, works originally published in a Berne country may be protected in other EU member countries. This is one of the primary advantages of copyright protection.

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

The definition of an original work of authorship is different from the underlying idea. For example, a photograph is a specific expression of a visual image. In this way, copyright protects the “expression” of an invention.  This could be a description, a discussion, a description of a process, or an illustration. For example, an author may produce an illustrated alphabet book for children. If the book is protected by copyright, other authors may not create the same book.

Copyright is one of the most important aspects of intellectual property law. It covers nearly every aspect of modern life and has a large impact on many industries. In addition to protecting individual creators’ rights, copyright also protects the “expression of an idea” and the idea itself. If you want to protect the “expression of an idea” you have created, you need to protect it. The law protects works of fiction, music, and art.

Software is created when a programmer specifies a collection of statements or instructions that can be used in a computer to achieve a specific result.  Software programs are protected by copyright. This includes all the copyrightable expressions contained in them. Copyright law covers the entire spectrum of software products.  Software copyright protection applies to computer programs that are fixed to a tangible medium including downloadable digital content.

Under the copyright system, original works are protected by their author’s right to publish. A copyright-protected work is considered a “literary work”. The copyright protection of software is automatically granted if it is created by a human author.  AI authorship at present is not accepted. An exception exists in the case of software created by an employee and in that case the applicant can be the employer, and the software is protected for seventy-five years after it was published.

While the Copyright Act of 1976 provides protection for expression, it does not protect ideas, concepts, themes, or intangible thoughts. This protection was created to foster improvements in the arts and sciences. Monopolies over ideas, concepts, themes, and other intangible thoughts would undermine those objectives. That’s why the requirement of expression is crucial to fulfilling the original intent of the Copyright Act. As such, it allows creators of new works to protect the expression of their ideas while allowing others to express them in other ways.

The term “expression of an idea” is used to cover an array of expressions and media, from photographs and videos to articles and music. The distinction between an idea and its expression is fundamental to copyright law. An expression can be copied if it has been produced by a third party who has the right to reproduce or use it. The question is whether the creator has the right to use that expression, and if so, how.

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  Thus, copyright does not protect the functional aspects of computer programs, such as their algorithms, formatting, functions logic, or design.

A copyright registration application must include three elements: a completed application, a non-refundable filing fee and a non-returnable deposit. This is a copy of the work that will be registered and “deposited” with the Copyright Office. Copyright Registration Circular 2 provides general information on how to submit an application. It also includes details about what you can expect after filing and the effective date for registration. You must file a separate application and pay a deposit for each work that you wish to register but if you have unpublished works, you can apply for multiple works with one application.

Copyright protection typically lasts for the life of the author (plus fifty years after death), and for 75 years after the work was first published. Infringing on copyright protection may lead to a plethora of legal remedies, including temporary and permanent injunctions, impoundment, destruction, damages, profits, and attorney’s fees.

The first significant case dealing with the copyrightability of computer programs was Whelan Associates, Inc. v. Jaslow Dental Laboratory. In that case, the court adopted a methodology to differentiate protectable ideas from unprotectable expression. The defendant had access to Plaintiff’s source code and used it to write a functionally similar program. The defendant’s software automated a dental laboratory’s business.

Whether the developer had access to the original work is a factor in copyright infringement.  One way to enforce copyright protection is to publish your work online and register it with the U.S. Copyright Office. Publication will also make it easier to prove that the copier had access to the original work.

Patent Protects Against Independent Development

Due to the expression limitation inherent in copyright laws, a third party can provide the same software code or SaaS services through independent development.  This is a limitation of copyright that patents do not have. A software patent can prevent a competitor from slavishly cloning the functionality of the software through the rubrics of independent development.

A software patent is a legal tool used to protect software features that are not protected under copyright or trade secrets laws. Examples include user interface features, editing functions, compiling techniques, operating system components, language translation methods, and program algorithms. Design patents can also cover menu arrangements, animated UIs, and display presentations. If violated, a software patent may bring triple damages.

As a result, software patents have a more complex history than copyright and trade secret protection. While many academic writers claim that software is non-patentable, this is simply not true. The confusion is not the fault of academic writers or the courts, but rather stems from the complexities of case law. The Supreme Court’s decision in Freeman v. Xerox Corp., for example, supports the premise that software is now generally patentable.

If you’re trying to protect information that you think your company has created or derived from another person’s invention, trade secret protection may be the best option for you. Trade secrets are proprietary and confidential information that generates independent economic value from not being widely known. These types of information can also be protected by patents. The difference between patents and trade secrets is that trade secrets may not require registration, and they often do not require legal fees.

If you’ve stumbled upon an invention that gives you a competitive edge, it’s likely that it’s a trade secret. However, trade secrets can be trumped through reverse engineering. That’s because they consist of information that’s easily memorized or written down by others. And with high employee turnover, keeping this information private can become very difficult. It is also possible that competitors, journalists, and bloggers will use it before your company even has the chance to claim it. This can cost you the status of your trade secret.

Trade secrets can be subject to laws and regulations at the federal and state levels. Under these laws, companies can take reasonable measures to protect their trade secrets. If others misappropriate your trade secrets through illegal means, they may face criminal penalties as well as unfair competition claims.

While copyright and patent protections are both valuable, they will eventually expire. Unlike copyright and patents, trade secret protection is not time-limited. It also doesn’t require registration or application fees. Most importantly, it becomes effective right away, unlike patents which may take several years to grant.

Is Computer Software Patentable In The United States?

You may have been wondering whether software is patentable in the United States. Whether it’s a computer program, game, or other creation is a complicated question, and determining whether it’s patentable is an important step in the process. Software can be protected if it’s new and unique, tied to a machine, and offers an identifiable improvement. Software that does nothing new, however, is unlikely to be patented. Moreover, software that is abstract in nature is not patentable in the U.S., and there has been precedent for this finding.

In the decades since the Alice v. CLS Bank decision, there have been a number of cases where software was considered patentable. However, many patent applications were later ruled invalid in the United States. This case is a good example of how software patents are flawed, and shows the USPTO’s inability to conduct research properly. The Alice v. CLS Bank case created confusion on the subject matter of patent eligibility. Although the USPTO has attempted to narrow its interpretation, they haven’t been able to reconcile the Alice case.

Software is patentable in the US when it affects a computer’s function. While code itself isn’t patentable, the way in which it is implemented is. Certain algorithms are able to be patented if they result in an improvement to how a computer functions, or if they describe a new useful computer implemented process. Automating a known process with a computer isn’t enough to earn a patent.

In the U.S., software patents are not a problem for the majority of products. In fact, software patents are common in many countries. The majority of US patents are granted to products that improve our lives. In addition, software patents can hinder software developers from improving their menus or making changes to existing programs. This is particularly true of software. In the UK, there are thousands of software patents in effect and the cost of obtaining a patent is typically very high.

There are some differences between software and hardware in their patentability. The patentability of software depends on whether it is an abstract idea or a practical application. A practical application is a method for treating a particular ailment. A central transformative effect fundamentally alters the nature of its intended target. This definition can be a bit vague, but software patents do exist outside the U.S. Patentability of software can also be questioned by the patent office.

Some argue that a strong software protection is necessary for domestic and foreign investment. However, this argument is arguably less important for advanced nations than for countries in the Third World. Software development in developing countries is still younger, and so legal solutions may take longer to develop in these countries than in advanced nations. Nevertheless, the U.S. International Trade Commission has examined the importance of software patent protection in fostering innovation. While there are several benefits to protecting software, a strong software protection may prevent growth in new technologies.

One problem with software patents is the lack of quality. Despite the lack of quality, software patents still allow for substantial IP protection. This is especially important for small businesses. Even if an innovative software development is not patented, it may still be subject to copycats. The current variations in national IP laws could also help the software industry thrive.

Patents Protect The “Idea”

The basic idea behind patents for software is to create a product that can do one thing better than another. However, in order to patent a software product, it must be more than just a simple application. The invention must be abstract, yet “necessarily rooted” in computer technology. It must solve a specific problem in a new way, and it must have claims that do not preempt every possible application.

The United States has one of the most software-intensive industries in the world, adding a total of USD 475.3 billion to the US economy in 2014. It supports more than 9 million jobs and directly employs 2.5 million people. But despite the importance of software, there is a significant gap between the idea of software and the laws protecting it. The current patent laws do not treat software inventions the same way as other novel technological advances, and this may be due to a misunderstanding of the nature of software innovation and the different IP rights that can be associated with it.

Software patents are a powerful economic tool for software developers, and can protect features that cannot be protected under other laws. Patented software can include user interface features, menu arrangements, display presentations, and algorithms. While the process of applying for a software patent is lengthy, it can help you protect your software. If you have an innovative idea, it is likely to be patented. Even if it is not patentable, it can be used to make software that solves a specific problem.

In order to be eligible for a software patent, the software must be used on a specific machine. That machine must be significant and essential to the software. However, it is impossible to patent lines of code, which would be protected by copyright. Instead, patents protect the idea behind the software and its processes. In the U.S., software cannot be patented, but it is not an abstract idea. If you want to patent a piece of software, you must create a detailed flow chart showing the steps that are involved in the creation of a software application.

The “improving computer functionality” rule may seem helpful on a superficial level, but in reality, this rule does not work. For example, while software patents provide some protection to the idea of software, they rarely cover any new method. In other words, software tends to improve a computer’s functionality, enabling computations that were previously impossible to do. In the same vein, software that improves its utility requires less computing resources.

Copyrights protect the idea of a software invention. While a copyright protects the idea of an invention, a patent protects the exact application of an idea. The copyright is limited to copying the source code, but it does not protect the idea itself. By contrast, a patent can protect the idea behind the software. It lasts for 20 years. For startups, patent protection lasts longer.

The process for securing a patent for software is usually a lengthy and formal process, but in most countries copyright protection of computer software is already established and harmonized by international treaties. Patentability of software has not been standardized internationally. But it does exist. Read on to learn about the differences between copyright and patent protection for software. Here are some examples. While copyrights protect the code itself, patents protect the idea or functionality dreamt up by the inventor, and that is the power (and also the controversy) of software patents.

Software Protection In The United States

Software is increasingly described as a collection of processes and unique machine, and patent law applies to both. As such, copyrights protect the method and not the idea. Patents, on the other hand, protect an idea or concept that is reduced to practice. Both of these protections have their limitations, but software patents are the preferred method in many instances. So, the choice depends on the breadth of protection you seek. 

When it comes to protecting your intellectual property, patenting software may be an attractive option.  Software patents can protect the idea or principle of the invention and can provide much broader protection over copyrights, which only protect the expression or implementation of the software.  Sometimes the belt-and-suspender approach of doing both makes strategic sense.

Disadvantages to pursuing software patenting may include the following. First, the process is slow: a patent application may take three to six years to be issued. Second, software patents may be invalid or outdated. Moreover, software patents are expensive: the average lifetime cost of preparing, filing and maintaining a patent in the United States can exceed $50,000.

In the United States, whether software is patented or copyrighted depends on its description. The description must contain essential elements that transform it into a patent-eligible application. Examples include reducing the amount of computing resources required to perform a task. Furthermore, it must be applied in a variety of ways, not merely to solve a specific problem. Thus, it is essential to focus on specific computing technologies and avoid broad descriptions.

A software patent gives the owner exclusive rights over their invention. For 20 years, a software patent owner can prevent others from manufacturing, selling, or using his invention. This makes software patenting the most effective protection for original computer programs. This legal protection may seem complex, but the benefits are obvious. In addition to preventing others from copying your work, software patents also offer the best protection against software piracy.

Software Protection In India

In India, software cannot be directly patented; it must be part of a new and original invention and be capable of industrial use.  The Patents (Amendments) Act 2002 notes that computer programme per se is not patentable   This leaves copyrights as the main protection for pure software inventions.

Given the importance of software in the modern economy, the Indian patent office recently issued new guidelines on CRI. The previous guidelines sparked controversy due to their ambiguity. The guidelines define the scope of CRI as “any software, hardware, or combination of hardware and software that is useful for performing a specific task.” The amended guidelines clarify that any new software, hardware, or combination of hardware and/or software must be novel and capable of industrial application.

However, copyrights are seen as weak protection. They only protect the idea or expression of the inventor, and not the principle itself. The emergence of copyrights in India has been accompanied by a surge in the creation of innovative software. However, despite these limitations, copyrights remain a popular option for protecting intellectual property. And for entrepreneurs, this is an excellent opportunity to protect their business.

Software Protection In The European Union

The European Patent Office has a strict policy regarding computer software, which means that applications for patents on computer software are generally scrutinized more strictly. However, this doesn’t mean that computer programs aren’t patentable. There are several ways to patent a computer program.

In Europe, to be patentable, a computer program must affect something outside of the computer. This is called ‘technical contribution’. However, the computer program itself is not the claim; the claim must be directed to the process the program carries out. The software must perform these steps to create a new process, not the computer program itself. In this way, the claim must be directed to a new way of solving a problem.

Software patents are a key element of the new laws. While the law does not require companies to disclose source code, the European Patent Office (EPO) issued a number of software-related patents. The decision led to a boom in software patents, most of which were not novel. However, the initial intent behind this exception was good. If you are wondering if your software is patented or copyrighted, read on to find out more.

The concept of intellectual property stretches beyond software and covers a variety of technological works, including apps, computer programs, databases, spreadsheets, screen displays, virtual reality environments, and online content. Copyright laws protect the artistic elements of works, including software, while protecting the functionality of them. This means that software created by companies or individuals in the United Kingdom can be protected from being used without the owner’s permission.

In the United Kingdom, software may be patented or copyrighted if the developer complies with all legal requirements. For example, software is protected by patents under the UK Patents Act, which mandates that the inventor of a computer program apply for a patent for his or her creation. This provision is controversial and has prompted heated debate. However, the UK Patent Act’s Section 1(1) requires that an inventor submit a patent application if his or her software is patented. The definition of an invention is not specified in the Act, but it is generally accepted that software is protected.

Unlike traditional forms of copyright work, software has an existence beyond the black letter of text. It produces effects and may require support or maintenance. As such, software is a hybrid of the idea and the expression of ideas. Even software may include errors and require support and maintenance. That’s why it is so difficult to patent software. However, it’s worth pursuing. If you’re interested in protecting your creation, check out the CDPA consultation document.

EPC 1973 excludes patent applications for “computer programs as such”. However, a computer program may be patentable if it has a technical effect that goes beyond “normal” physical interactions. The determining factor is deciding what qualifies as “as such.”

The European Patent Convention and Spanish Patent Law include a non-limiting list of things that are not patentable. These lists are similar in wording but include mathematical methods, means of presenting information, and computer programs. In order to be patentable, computer programs must improve technology or improve manufacturing processes. Computer programs that automate business processes are not patentable. The EC’s rejection of the 2002 directive should be taken into consideration when making decisions about patentability.


Like many things in life, computer programs undergo continuous innovations and changes. Originally, computers were used to solve mathematical equations, but over the years they have evolved to meet the needs of users and to meet new challenges. Today’s computer is a laptop, and even smart phones.  As such, there is no such thing as one answer.  Here we suggest that you consider multiple bases of protection: copyrights, patents, and trade secrets.