Patent Vs Copyright

Rich Goldstein

Founder & Principal Patent Attorney
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Patents and copyright are two different types of intellectual property law that protect your property rights. Patents and copyrights give the holder different types of rights that they can assert over others. Which one is best for your intellectual property will depend on what you are seeking to protect. 

Patents vs. Copyright

In general, patents provide legal protections for inventions which contain new ideas so that the holder can keep others from making commercial use of the idea without the holder’s permission. Copyright provides the holder with legal protection for expressive works such as novels, art, and sound recordings. 

Patent Rights

A patent is a type of property right. Patents protect inventions. A patent gives the patent holder the right to exclude others from making, using, selling, or importing whatever is within the scope of the patent. Patent protection means you will have exclusive control over your big idea and can shut others out of the market. 

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The United States Patent and Trademark Office is the government agency that administers patents and makes patent determinations. The process for obtaining a patent can be complicated and difficult but provides expansive rights and protections over the invention. 

Patent Requirements

There are three requirements for something to be patentable under United States patent law. The criteria is set out in the applicable patent law, 35 U.S.C section 101, which states:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”

This can be distilled into the following requirements:

  1. It must be novel;
  2. It must be non-obvious; and
  3. It must be useful.

For an invention to be novel, it must be different from anything else that has previously been available in the world. For an invention to be non-obvious, it must not be obvious to a person of ordinary skill in the invention’s particular field. Finally, for an invention to be useful, it must meet three requirements:

  1. Practical utility;
  2. Operability; and
  3. Beneficial utility.

Patent Types

There are two main types of patents:

  1. Utility; and
  2. Design. 

A utility patent protects the way something is used and works. A utility patent prohibits others from making, using, or selling your idea without your authorization. 

A design patent protects the way something looks. This includes the shape and configuration of something, as well as the surface ornamentation that is applied.  In some cases, a design patent can protect both the shape and the ornamentation. 

Patent Applications

To obtain a patent, you must apply for one through the United States Patent and Trademark Office. A nonprovisional patent application is the formal patent application that you will submit for your invention. Filing this application will mark your idea as patent pending

A nonprovisional patent application must include the following things:

  • Application Transmittal Form or Letter;
  • Specification, including a description and a claim or claims; 
  • Drawings, when necessary; 
  • Oath or declaration; and
  • Required filing, search, and examination fees.

A specific patent examiner is assigned to your patent application upon submission. The patent examiner will issue office actions with questions and concerns that you will be allowed to respond to. There may be substantial back and forth between you and the patent examiner before your patent is granted. 

Overall, the average time it will take to get a patent is 22-30 months from the date of filing your patent application. The current average time is 24 months. However, it is important to note this time frame will range depending on the type of patent you are seeking and the level of complexity behind your patent.

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Copyright Rights

Copyright protection, on the other hand, gives the creators of original material the exclusive right to use and duplicate the original material for a specific amount of time. Following this time period, the copyrighted item becomes public domain. 

Essentially, copyright protection covers artistic and intellectual works such as music, books, plays, art, sound recordings, and can even extend to things like computer software.

Copyright protection provides the following three rights:

  1. The right to reproduce the work;
  2. The right to make copies or adaptations of the work; and
  3. The right to announce the creation of the work to the general public. 

Copyright Requirements

There are two fundamental requirements that must be met for a piece of work to receive copyright protection:

  1. The work must be original; and
  2. It must be fixed in a tangible form. 

Copyright often hinges on whether the work is classified as “original.”  Under copyright law, a work is considered original if the author created it from independent thinking and it is void of duplication. This is also referred to as an Original Works of Authorship, which is a specifically defined legal term.

If you have an original work of authorship, then you automatically have the copyright to that original work. This copyright prevents anyone else from using or replicating it. You can voluntarily register this copyright as the original owner.  

Registering your copyright provides you an upper hand should you need to pursue legal remedies against an infringer later on. 

For work to be fixed in a tangible form, the work needs to be able to be applied to something. This could include things like DVDs, CDs, the internet, paper, a microchip, and the like. 

Copyright Applications

Copyright applications are a much simpler procedure than patent applications. Applications generally can be submitted online or via mail to the United States Copyright Office. Some specific works, however, are required to be submitted in physical form. You must submit a copy of the work with the application, which will not be returned.

Copyright applications typically take three months to be registered. Filing copyright with the United States Copyright Office costs $35 for an online filing. Paper filings can range from $50 to $65.

Why Intellectual Property Rights Are Important

As intellectual property rights, both patent rights, and copyright rights are very important in protecting your property. Both patents and copyrights can provide the owner legal grounds to pursue legal remedies against infringers of your intellectual property

In general, intellectual property rights are important for fostering and encouraging innovation. Without intellectual property protection of ideas, individuals and businesses would not be able to reap the benefits of their hard work and ingenuity. 

This means they would be less likely to focus their attention on research and the development of their ideas. Moreover, creators would not be fully compensated for their ideas and creations. All of this, in turn, would have a negative impact on society at large. 

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How Long Patents Last

Patent right terms depend on the type of patent you have acquired. Utility patents are good for a period of 20 years from the date of filing the nonprovisional patent application for the invention. This term of 20 years can be subject to adjustments and extensions, which are explained in more detail below. 

Utility patents are the main types of patents that are issued. These patents protect the intellectual property of novel products, machines, processes, or compositions of matter that are considered useful. It protects the way something is used and works. 

A design patent is good for a period of 15 years from the date of filing the patent application for the design invention. This 15-year period can be subject to adjustments and extensions, which are explained in more detail below. 

A design patent protects the intellectual property of the shape, appearance, or other attributes of the way something looks.  You can apply for both a utility and a design patent for the same invention if your invention has both a useful application as well as design features you want to protect.

How Long Copyrights Last

Copyrights last different lengths of time depending on whether the copyrightable piece of work is published or not. It also depends on whether the work was created before or after 1978. This is because the Copyright Act of 1976 established specific lengths and other laws for copyright. 

If the copyrightable work is published and is created after 1978, then the work is protected for the entire life of the author plus 95 years. If the work has not been published, it is still protected for the life of the author plus 70 years after the author’s death.

Whether to File for Both A Patent and A Copyright

Parties often choose to file for both a patent and copyright to protect their intellectual property rights. This is because copyright laws and patent laws can protect different parts of the piece of work. 

For example, computer software code is protected by copyright law and receives similar protections as other written works such as a novel or play. On the other hand, the actual functioning of that code is protected under patent law as a process that is able to acquire a patent. 

This means it is smart to seek both patent and copyright protection so that you have legal rights against both forms. 

Consult an intellectual property attorney to determine whether a patent vs. copyright or both is right for your big idea. 

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