Copyright or patent: where’s the catch?

At this point, for copyright protection you may be asking yourself ‘where’s the catch?’ United States copyright registration is substantially less expensive than United States patents. Does this mean that you get what you pay for? Which is better? The answer is: it depends upon your requirements while remembering that no form of IP protection is a magic bullet.

To begin, copyright protection only extends to those original or partially original works which are NOT abstract ideas. The same is true for patents: the four categories of works which are patent-eligible do not include abstract ideas. In this respect both the United States copyright and patent statutes prohibit protection of abstract ideas.

Consequently for copyright protection the author’s ideas must exist in a permanent matrix or substrate. For example, a musical composition is not eligible for copyright unless it is written on something tangible such as paper. For a musical soundtrack the sounds must be placed upon a CD; DVD or other electronic tapes. Visual art is not protected unless it is, for example, painted upon a canvas, imaged on a photographic negative or visible upon a computer screen. A speech is not protected unless it is fixed upon an appropriate tape or written upon paper.

Here is another example: Suppose you attend a cocktail party, and you tell a stranger the detailed plot of a book you intend to write. The stranger runs home, records the plot of the book you divulged, submits it to a publisher, sells the published book and makes a great deal of money. Do you have a copyright remedy? No, because the stranger did not take the plot from your written paper or sound recording, and therefore the plot were not protected by copyright.

In the above example, do you perhaps have a patent remedy? No, because the idea for a book plot, or any abstract idea per se is not patent eligible. The invention must be tangible or address manipulation of tangible subject matter. For example, a process that transforms liquid rubber to a container is patent–eligible, because the soft rubber mixture is physically changed to a container with fixed dimensions. In any event, even a written or sound-recorded book plot are not generally patent-eligible.

Another question to ask before selecting copyright registration or patents: What is the inclusiveness or breadth of protection, assuming the work qualifies for both? The answer: The scope of a United States copyright registration only includes the original content of the work. On the other hand, a patent’s protection depends in part upon the sentences designated “Claims,” and not the exact description of the invention. Short claim sentences provide more inclusive broader protection than longer sentences containing a detailed description of the invention. Consequently, the goal of the patent attorney or patent agent is to draft claims that are as short as possible.

Copyright 2010 Adrienne B. Naumann

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