Patents and Copyrights: What’s the Difference?

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 What Is a Patent?

Individuals who invent things want to protect their inventions from any unauthorized distribution or use. Under federal patent laws, patents are provided to inventors to exclude other parties from “making, using, offering for sale or selling the invention” in the United States.

Typically, patents exist for twenty years. They may be used for any invention in any field of technology.

Generally, for an individual to receive a patent from the United States Patent and Trademark Office (USPTO), an invention must be:

  • New;
  • Unique; and
  • Generally unobvious.

There are different categories of patents that are available, depending upon what an individual needs to patent, including:

  • Utility patents: In order to qualify for a utility patent, an invention must be moderately useful. In general, an invention is required to be:
    • a method or a process with a concrete result;
    • a machine;
    • a chemical or biological composition of matter; or
    • an invention improvement;
  • Design patents: Generally, a design to be patented is required to be:
    • novel;
    • non-obvious; and
    • nonfunctional;
  • Plant patents: Plants that are created may be patented. The plant has to be novel and non-obvious.

There are numerous things that cannot be patented, including:

  • Naturally occurring substances;
  • Laws of nature;
  • Ideas;
  • Calculation methods; and
  • Other things.

What Is Copyright?

Copyrights provide the right to prevent other individuals from using an individual’s originally authored work. The work or item that is to be copyrighted should be an original and should not be a reproduction or copy or property that is already copyrighted.

Under federal copyright laws, copyrights entitle the owner to numerous exclusive rights, including the right to:

  • Reproduce the copyrighted work;
  • Distribute copies of the work that is copyrighted to the public for sale;
  • Perform the copyrighted work;
  • Produce a license that are derived from other copyright materials; and
  • Obtain a license to manufacture and make a product.

Copyrights can be used to protect numerous different types of creative work, such as:

  • Recorded or sheet music;
  • Books and novels;
  • Software codes, video games, and CD-ROMs;
    • It is important to note that these items may not be protected if they have already been distributed through a copyleft agreement; and
  • Art, including:
    • paintings;
    • plays;
    • dance choreography; and
    • sculptures.

Under federal laws, an individual obtains a copyright to their work automatically once they have fixed their original work in a “tangible medium of expression.” The individual must have independently created the work and must not have adapted it from something else.

The individual’s work must also be in a sufficiently permanent medium so others can:

  • Reproduce;
  • View; or
  • Communicate it.

Copyright protections apply the moment the author fixes their work in a tangible form without the author being required to take any action. Once a work has copyright protections, the creator or inventor can decide who is allowed to use the work and for what purposes it may be used.

Once a work is protected, no other individuals are permitted to use the work without permission from the creator.

How Do Patents Differ from Copyrights?

Both patents and copyrights are governed by intellectual property laws. The main purpose of a patent is to protect physical inventions and processes.

For example, if an individual developed a machine that turns coal into diamonds. In contrast, the main purpose of a copyright is to protect the expression of unique ideas.

One example of this would be a book that describes the process of turning coal into diamonds. One way to differentiate patents from copyrights is in the concept of mental steps.

Although the majority of patents are born from ideas, their utility comes from the end product. For example, the usefulness of a vehicle is based on its physical design as well as the assembly of its parts.

In contrast, copyrightable items gain their usefulness from its expression of a mental process or idea. For example, the usefulness of a book is not in the construction of the book itself but in the thoughts and ideas that are written down in the actual text.

What Are Some Examples of Patents and Copyrights?

Examples of patents can include almost any physical invention that an individual can imagine, including:

  • Toasters;
  • Airplanes;
  • Computers;
  • Generators; and
  • Even simple items, such as toenail clippers.

Additionally, patents may include the creation of synthetic, or not naturally occurring, plant breeds in addition to unique design methods for existing inventions. For example, a car that uses magnetic force to move instead of an internal combustion engine.

Examples of copyrights can include all types of expressive mediums, for example:

  • Books;
  • Songs;
  • Screenplays; and
  • Paintings.

Additionally, copyrights include protection for computer programs and software. Although computer programs may be patentable, courts consider them to be an expression of mental logic and reasoning, based on their creation from computer coding.

However, if a program is designed in conjunction with accompanying physical hardware, it may be patentable.

Software patent protection may be available for a new, non-obvious invention that uses a computer program is eligible for patent protection if it produces a “useful, concrete, and tangible effect,” according to the United States Patent and Trademark Office (USPTO).

In other words, a software program may be patentable if it can be used for an industrial or commercial purpose.

Do Patents and Copyrights Differ in Their Level of Protection?

Yes, patents and copyrights differ in their levels of protection. A patent not only protects the particular design of an invention, it also protects against deviations from that invention.

For example, suppose that A builds a perpetual motion plane that B intends to duplicate. Even if V decides to use different parts or alters part of the design, as long as B’s invention is also a perpetual motion plane, this is still considered patent infringement of A’s invention.

In contrast, copyright protections are much more literal. For example, suppose A writes a book about yoga and its effects on golfing.

Even if B were to write a book on the same subject, it would not be considered copyright infringement. B would most likely have to copy exact passages or employ the same arguments used in A’s book for it to be considered infringement.

Both patents and copyrights include protection for computer software.

What Is Infringement?

Infringement is the unauthorized use of protected materials under intellectual property law. Typically, this refers to copyright infringement, for example, when artistic works, music, or literary works are used without approval from the creator.

Infringement, however, may also involve other categories of intellectual property law, such as trademarks and patents. In recent years, domain name infringement has become a standard legal dispute.

Usually, proving infringement requires a valid trademark, copyright, or patent to be in place. It also requires evidence that the defendant used the protected invention, material, or artistic work without notifying the individual who has ownership rights in the material.

How Can an Intellectual Property Attorney Help Me?

When dealing with a copyright or a patent, it is easy for you to be confused regarding which of the two will actually apply to their new idea or invention. Because of this, it is best to consult with an intellectual property lawyer when you are considering filing for either a copyright or a patent.

Your lawyer can point you to the correct area of protection and assist you with the process of obtaining a copyright or patent. Protecting your ideas and inventions is the best way to protect your livelihood.

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