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The short answer: if your software is patentable, patent it; and, you probably already have a copyright on your software! 

But perhaps the real question is: how are patent protection and copyright protection different? Below I’ve outlined what those rights protect, how to decide which you need, and how/when to secure those rights.

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Let’s start with copyright, since that one is the simplest when it comes to software. A copyright is the right to prevent others from copying your original works that are somehow recorded on a tangible medium. When it comes to software, copyright extends to two areas: the code (e.g., the the unique tags, variables, objects, calls, and so forth that is read by the computer), and the end result output by the computer (e.g., the visual display and arrangement perceived by humans). 

Importantly, copyright does not extend to functionality. For example, if someone creates a program that does the exact same thing as yours, but uses different code and/or has a different visual appearance, you cannot assert your copyright against them.

On the other hand, utility patents protect the functionality of your software regardless of form. Find a competitor with a different design aesthetic doing exactly what is covered by your patent? Sue away. Find a competitor with a similar design aesthetic doing something not covered by your patent? If their design is similar enough, you may be able to assert your copyright, but you won’t be able to assert your patent against them.

One caveat here: a design patent may help when it comes to form over function. There has been a spike in recent years of companies obtaining design patents for their graphical user interfaces. Depending on how unique your user interface is, you may be able to obtain a design patent, adding one more arrow to the quiver of rights you can use to protect your software against competitors.

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Ask yourself these questions: 

     1: Does my software do anything new or unique? 
     2: Does my user interface have a unique or novel design? 
     3: Is the arrangement of the code original? 
     4: Is the visual appearance of the user interface original? 
     5: Do I suspect someone has copied my code or the visual appearance of my software?


If you answered yes to the first question and/or the second question, you’ll want to strongly consider getting a patent. For more on knowing whether your software is patentable, check out this article. If you answered no to both, it may still be worth it to grab a free consultation with a patent attorney who has expertise in patenting software (schedule one here!).

If you answered yes to the third, fourth, and fifth questions, get your copyright registered today. If your software is original but you don’t suspect copying, slap a copyright notice on it and keep your eyes open for infringement, but save your money on registering your copyright.

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Your copyright comes into existence the moment you create your software, provided you haven’t “borrowed” from other software (for more on derivative works, check out this article). Slap a copyright label on it so everyone knows it’s an original work and you’re off to the races. You don’t need to go through the expense of registering your copyright until you suspect someone is copying your software.

There are a few benefits to waiting to register your copyright. First, it saves you the expense of registration (which is fairly low to begin with) until absolutely necessary. Second, software constantly evolves. It is constantly updated. It would become prohibitively expensive to re-register every minor update to your software. It is more cost-effective to wait until you suspect your copyright is being infringed, then register.

You do not have any patent protection until you file a patent application with the USPTO and a patent is granted. For software, that can take two to three years. No worries, though: protection goes all the way back to the original filing date. So, once you have clearly established what your software does, start working with a patent attorney. In every case, make sure you’ve filed your patent application before going public! For more on how public disclosures can ruin your day, check out this article.

Tl;dr: copyrights protect form, patents protect function. Copyright comes into existence the moment your software is made, and you don’t need to register until you suspect infringement. Get a patent before you go public. If your software does something new or has a unique interface, consider getting a patent. If the code or visual appearance of your software is original, register it once you suspect it’s been copied.

In Conclusion

Does Computer Software Need A Patent Or A Copyright?
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Copyrights protect form, patents protect function. Copyright comes into existence the moment your software is made, and you don’t need to register until you suspect infringement. Get a patent before you go public. If your software does something new or has a unique interface, consider getting a patent. If the code or visual appearance of your software is original, register it once you suspect it’s been copied.
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