Distinguishing the Difference between Patent and Copyright Protection

Patents grant exclusive monopoly rights for a limited term for novel and inventive products and processes, in return for publication of details of the products and processes to encourage dissemination of information and promote further development. Patent protection may provide a monopoly for ideas and concepts when embodied in product form or reproducible process. The monopoly however is only granted after an administrative process to determine whether prescribed eligibility requirements have been met.

Copyright Protection

Copyright on the other hand is not for protecting ideas or concepts but is provided to protect original expression from unauthorised reproduction or adaptation. The right is granted automatically as it is not intended to be a monopoly right for any use of a work. Independent creation and minimal threshold creativity is required for copyright to subsist.

Patent Strengths

There is no independent creation defence for patent infringement - infringement occurs as long as the invention falls into one of the claims in the claimant's specification. This is the aspect that renders patent as a more formidable form of protection. With regard to functional aspects, copyright protects against literal copying and slavish imitations of the mode of expression in code. Patent protects against infringing use, whether through derivation or independent development, of the broader functional aspects of the invention.

These two forms of intellectual property protection in the past have sought to provide a balance between rewarding creative endeavour with a grant of exclusive rights, and encouraging and facilitating access to innovation. With patent protecting primarily the industrial arts and copyright protecting primarily the intellectual fine arts, the balance is largely maintained.

The unique functional nature and development process of computer programs has however initiated challenges to the basic principles and relationship between the two regimes.

A re-evaluation of copyright with respect to functional devices has ensured the future of copyright as the mainstay of software protection.

Major Technologies

The scope for patent protection in the modern age tends to revolve around the provision of data. To demonstrate the broad potential for patent protection, instances of the more lucrative areas of research in modern technology may be highlighted:

• high level algorithms - for example, electronic shopping carts
• New communications protocols
• Algorithms for compression, encryption, searching, indexing and authentication of data
• Search engines that structures results form a web search
• Targeted advertisement delivery algorithms
• Online banking applications
• Smart card systems, and
• Electronic money architectures.

It is important to remember that public use of an invention destroys any right to patent protection, as does any attempt to exploit the invention prior to the patent application. Read about obtaining technology based patents here.