Guest Post: Should you Copyright a Software
or Patent it?

Authors: Shivang Khandelwal and Tanmay Bhanushali

Copyright a Software or Patent it

Every programmer puts in tremendous effort in developing a software program. As difficult it is to write a code, copying it is simple. A program is an Intellectual Property of the programmer and deserves absolute protection. What could be the best way to protect software programs? There are two choices, Patent or Copyright, both have some perks and merits. Are you confused about the choice? Let us take a closer look at both one by one

Decoding Software code

A software program runs on a source code written by a programmer. The source code is a set of computer instructions written in a computer language like C, C++, Java, Python, etc. These instructions define the program’s functionality. It takes a lot of skill, time, and labor to write a program code to run a specific task or sequence of tasks. The programmer must know the system on which the program will run and the programming language with all the necessary plug-ins or libraries. Taking a screenshot on your phone by a simple gesture like swiping three fingers is such an easy task, made possible by a code that understands the gesture and commands the phone to take the screenshot. The gesture made on the capacitive touch screen is converted into a digital signal, transmitted to the central processor, which then commands the system user interface to capture the screen. Understanding this process in easy words is also complicated imagine writing the code to instruct a machine for this task.

Copyrights and Patents

Creative imagination takes hours of hard work to turn into an original piece of artwork. Creating a space where artists feel their artwork gets protected is quintessential to let them explore their talents and earn from them. Copyright is one such tool that protects original creative work like screenplays, books, poetry, music, films, paintings, software code, etc. These copyright laws give any creator the exclusive rights to copy, reproduce or even publicly publish their work for financial gain. Although copyright registration is not mandatory, it is recommended for creators to get their work registered as it symbolizes originality and provides evidentiary value to the creative work. The term of this registration lasts while the creator’s lifetime plus an additional 60 years after his/her death, forbidding anyone to copy and sell their work. After those 60 years, the copyright will come under the public domain for anyone to use it without any restrictions. However, work produced by an employee for his/her company under the tenure of employment can be rightfully claimed as the company’s property. The copyright protection laws are prominent globally, allowing artists to produce phenomenal work. While copyright protection lets the artists rule the entertainment industry, it is the inventors who revolutionize the world

A Patent is one of the most important intellectual property rights which protects an invention for a limited time, allowing the owner to stop others from making, allowing for sale, using, selling, and importing the invention without his/her permission. A patent is an exclusive right granted a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.. Patent grant in exchange requires full technical disclosure of the invention to the public in the patent application. As a patent is the inventor’s property, it can be bequeathed, sold, or licensed. The patentee of a particular country can also stop someone from importing products into that country to avoid possible infringement of his rights. An invention needs to be novel, non-obvious and have some industrial application. The term of a patent is for 20 years from the date of filing of the application, after which it moves to public domain.. Similar to copyright protection, an organization will automatically own a patent if the invention was invented at the workplace and filed during the employee’s term of employment

Copyright for Software

A copyright protects the form of expression of an idea. For software, a copyright can be obtained for the source code, protecting only the fixed and tangible form of the source code. The exact code submitted for the copyright is protected, but not the functionality or the application of the software under copyright law. If someone were to copy a copyrighted software code, they may just change the language of the code, copying the logic exactly as it is or, they may change some variable and the types of input-output methods to avoid a copyright infringement. For many years copyrights have been the first choice for protecting a software program. The protection under copyrights is insufficient to defend an inventive idea. Consider the case of Baker v. Selden, 1879. Selden copyrighted a book in which he had explained a system of bookkeeping that used a certain type of forms to put the system to use. On the other hand, Baker started selling the forms. Yet Selden could not stop Baker from selling the forms mentioned in his book as the copyright only protected how he described his bookkeeping system and not the system itself.

Patent for Software

A patent protects the functionality and application of an invention rather than the underlying source. The invention can be a process or a product with an inventive step. A program code on its own is not patentable, but a software using the code is patentable. Obtaining a patent for a software is more challenging than a copyright. A software is patentable if it has a “technical effect”. The software must have a technical advancement over the prior art. The software must also pass the Guidelines for Examination of Computer related Inventions (CRIs).

  • Novelty: It is the prime requirement for determining the patentability of any invention. Therefore, any subject matter, description, or information available / disclosed before the date of filing/date of priority will not be considered novel and therefore nonpatentable.
  • Inventive Step: The inventive step is identified under the following parameters:
    a. Identifying the inventive concept in the patent,
    b. Identifying common general knowledge in state of the art on the date of priority,
    c. Identifying differences in the claimed and cited inventions and
    d. Deciding whether the difference constitutes steps not obvious to a person skilled in the existing state of the art.
  • Industrial Applicability: Any invention which seeks a patent must have an industrial application, i.e., which can be made or used in industry.


Given the above, a copyright can protect any program code. Further, if the program code has an inventive step, one should consider filing a patent. Obtaining a copyright first and then filing a patent application offers the best protection. Protecting your software, either by copyright or patent, or both is important. To find out more, or to get more specific advice relating to your software inventions, do reach out to us at:

About Photon Legal

Photon, a light particle, aims to illuminate your path. With the same philosophy, Photon Legal aims to guide you in the unknown terrain of Intellectual Property (IP). Photon provides cutting edge out of the box IP solutions to Corporations, R&D institutes, Scientists, and Tech Start-ups. Photon focuses on Patent Analytics, Patent Drafting & Prosecution, Patent litigation support to US and EU litigations, IP Advisory and Strategy, Technology Landscapes, and the like.