BACK TO BASICS (OF COPYRIGHT)! Part 4

A very important benefit of copyright registration is that computer programs are copyright eligible as written works.[1] Copyright eligible computer programs comprise source code or object code although source code is preferred.[2] Executable code as well as non-executing comments within source code are each copyright eligible if they comprise sufficient originality and creativity.[3] Generally a computer program and resulting screen display comprises the same copyright eligible work and an ‘app‘ is also considered a computer program.[4] Copyright eligible source code is written by a natural person(s) using computer programming language such as Java or C++.[5]

With this very basic information in mind, one should be aware of considerable controversy surrounding patent eligibility of computer programs as computer related inventions.[6] Computer related inventions fall into two separate groups with respect to patent eligibility (i) those which improve the function of a computer, and (ii) abstract ideas implemented by generic computers with no improvements to those computers. For the first group sufficient knowledge of computer programming and software/object code drafting should prevent the rejection of a U.S. utility patent application based upon patent ineligibility. For the second group, there is simply no manner by which to draft an application for patent eligibility because abstract ideas in and of themselves are never patent eligible under U.S. patent law.  In this second group, without improvements to the computer or computer system, there is no inventive concept to salvage the purported invention.

But here is great news.  The computer program containing the abstract idea may be protected assuming sufficient originality, creativity, and other computer programing requirements in the U.S. copyright office. The copyright office is a separate agency under a different law with different requirements for registration. For these reasons the applicant should submit a registration application to the copyright office for a computer program which is not patent eligible under U.S. patent law.

There are other significant advantages to submitting a copyright registration for the computer program. To begin the initial preparation of the application requires significantly lesser, and fewer, attorney and government fees than a patent utility application. Secondly, time elapsing between application submission and a copyright office registration decision is also significant less than that for a patent application. There is also no first to file an application requirement or non-extendable deadlines for a copyright registration initial submissions. Finally, but very importantly, there is a copyright office procedure for redacting trade secrets from a submitted computer program.

©2022 Adrienne B. Naumann, Esq. All rights reserved. Ms. Naumann does not sponsor or endorse the advertisements at adriennebnaumann.wordpress.com.


[1] A computer program comprises instructions to be used in a computer for producing a certain result. U. S. Copyright Office, Compendium of U.S. Copyright Office Practices section 721.1 (3d Ed. 2021) [hereinafter Compendium]; 17 U.S.C. section 101. A computer program comprises a literary work.

[2] Compendium section 721.5.

[3] Id.  section 721.9(F).

[4] Id. sections 721.10(A) and 722.

[5] Id. section 721.3.

[6] See 35 U.S.C. 101.

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