Different areas of intellectual property protection are designed to protect different subject matter. Patent law protects the industrial arts and copyright is designed to protect the fine arts. Overlaps can exist in these different forms of protection when considering particular types of works and inventions.
Patents grant exclusive monopoly rights for a limited term for novel and inventive products and processes. To obtain these rights the applicant is required to disclose details of the products and processes in the patent application 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 on the other hand is not for protecting ideas or concepts but is geared to protect original expressions in a firm which has been recorded from unauthorised reproduction or adaptation. The exclusive rights granted by copyright are granted automatically as soon as the work is created. Copyright is not intended to be an absolute monopoly right in the same way as patent rights. Others are perfectly entitled to extract the ideas from a copyright work, obtain inspiration from it and create new works independently, provided that they do not copy a “substantial part” of the work. A minimal threshold for creativity is required for copyright to subsist. Also, copyright law does not protect a copyright owner’s work where another person independently creates a copyright work which is identical to a previous copyright work, provided that they do not copy it – such as where the second creator had no knowledge of the first work at the time they created it. This is referred to the independent creation defence.
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 patent. This is the aspect that renders patent a far more formidable form of protection than copyright (and any other form of intellectual property). With regard to functional aspects, copyright protects against literal copying and slavish imitations of the mode of expression in copyright works (such as source code). Patent protects on the other hand protect against infringing use, whether through derivation or independent development of the broader functional aspects of the patented invention.
These two forms of intellectual property protection in the past have sought to provide a balance between rewarding creative endeavour for different works/inventions in different ways. The exclusive rights granted by each form of IP protection are different in nature and extent. Patent right are extensive whereas copyright grants a qualified monopoly, because not all uses of a copyright work are unlawful. Patent rights on the other hand grant extensive protection to protect the higher standard required to obtain the patent rights in the first instance.
To demonstrate the broad potential for patent protection in the context of computer software, instances of areas of research and development which tend to produce patentable inventions are:
Having said this, any invention is patentable provided that it satisfies the tests for patentability and does not fall within excluded subject matter. Truly inventive software applications are able to be patented which contains a technical advance when compared to the prier art as at the date of the patent application. Copyright remains a form of protection which applies automatically to software because it qualifies as a literary work within the meaning of copyright law.
It is important to bear in mind that public use of a patentable invention destroys any right to a patent, as does any attempt to exploit the invention prior to the patent application.
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