Due to numerous requests I will discuss how to differentiate copyright subject matter from patent subject matter in this article. In the United States subject matter protected by copyright registration is within categories such as: visual art, literary works, musical compositions and performance, choreography, computer programs and architectural drawings. For our discussion the most relevant categories are those for computer programs, automated databases and visual art. The remaining categories generally will not present an “either or” situation for patents or copyright registration.
IT businesses must be particularly alert to copyright registration instead of patents for computer related subject matter. Copyright registration is also available for online works such as automated databases, screen displays and web sites. As I previously mentioned, United States copyright registrations are infinitely less expensive, and are obtained more rapidly, than patents in the United States. For computer programs strategic selection often depends upon whether there is hardware combined with a computer program. If so combined, then you should select patent protection.
On the other hand, suppose you create a device which contains both hardware and a computer program, and there are only sufficient funds for one copyright registration. Furthermore, you must place your product on the market in the near future because the technology changes so rapidly. For this imperfect situation, in terms of price you should select copyright registration. Why? Because if you obtain copyright registration for the computer program then you will be partially protected (which is better than no protection at all)? The same would be true of an online automated database.
Visual art is subject matter protected by a design patent under certain circumstances. This generally occurs with a purely ornamental two or three dimensional visual art work as part of a manufactured item. In that instance you can either seek copyright registration or a design patent (computer programs are generally protected by utility patents). You may also decide to go the copyright registration route for screen displays and web sites.
In sum, computer programs and ornamental visual art are works for which you must decide between copyright registration and patents. At this point you may revisit my earlier discussion of the deterrent value of intellectual property protection and the wildebeest analogy. Why? At the end of the day, it’s all about shekels. Consequently, if it becomes more expensive for a competitor to misappropriate your assets, then that competitor most likely will move on to the next business which has no intellectual property protection whatsoever. Intellectual property protection in any form is not a magic bullet, just as there is not magic bullet cure for many medical problems. However, statistically you are more likely to survive with the most savvy intellectual property protection your business can afford.