The explosive growth of web 2.0 sites and mobile applications has been changing the technology landscape in past couple of years.  With companies increasingly focusing on developing very narrow areas of emerging technologies, IP is quickly becoming the biggest differentiator and value generator.  In this setting, software developers and technology companies are especially faced with the dilemma of identifying the best form of IP protection for their software assets.  Generally, for software programs, the choice is to either file for copyright registration or patent protection, or both.

According to Copyright Act, 17 U.S.C. § 101, computer programs are “literary works,” and are thus entitled to copyright protection.  Although the case law in this area is constantly developing, it is safe to say that the extent of protection offered by copyright law is rather limited.  Although the “literal” copying of a copyrighted computer program’s source code or object code will ordinarily result in a finding of copyright infringement, it is not entirely clear if copyright law can afford any protection beyond that point.  It is clear, however, that if the motivation behind seeking IP protection is to protect the behavior, logic, or functions of the software program, then seeking patent protection is probably the best possible course of action.

By obtaining patent protection, software developers who develop new and creative software solutions can assert an exclusive right to a functional system, process, or method of operation.  While “utility” patents are most commonly used to meet such objectives, software developers can also use “design” patents to protect the ornamental aspects of the functional items previously described.  For example, design patents can be used to protect innovations such as fonts or computer icons.  In all cases, the law currently does not allow patent protection for laws of nature, physical phenomena and abstract ideas.

Copyright law enables software developers to protect an expression of a idea, but not the idea itself.  While this allows for some protection on a literal level, it also allows competitors to design around the idea by expressing it differently, i.e. by rewriting the underlying code differently to achieve the same functionality.  Patent law, on the other hand, gives the patentee exclusory rights to the underlying processes and inventive features, thereby offering a more robust mechanism to protect the actual invention expressed in the source code and the object code.  Ultimately, the decision on if and how IP protection is sought should be made in the context of an organization’s overall IP strategy and keeping in line with the organization’s value-driven goals and objectives.