Software is eligible for several types of intellectual property protection, including patent, copyright, and trade secret protection. Each of these modes of protection provide different types and degrees of protection, and there are different costs associated with each. Understanding the details of each mode of protection is critical for the tech start-up looking to obtain affordable and realistic software protection.

Copyright protection is a fairly cheap and convenient way to protect software. Copyright rights arise the moment the code is written, federal copyright registration typically costs several hundred dollars as opposed to several thousand, and a registration will be obtained in a matter of months. Conversely, patent protection does not attach at the moment of creation, but instead requires registration.

Registration in turn requires a substantially larger expenditure of anywhere from $5,000 to $15,000, and the granting of a software patent, as is the case with any patent, is not guaranteed. The process is also far longer, lasting well over one year in many cases, and initial rejections by the UPSTO may require additional expenditures on a licensed patent attorney that can successfully respond to office actions.

While copyright protection is more convenient in many ways, as it is cheaper and because software protection arises at the moment the software code is fixed in a tangible medium of expression, issues relating to the “idea/expression dichotomy” may limit the scope of a software copyright. For some background, it is important to note that copyright law does not protect ideas, only their expression in a fixed, tangible medium of expression. As a result, courts may limit the scope of a copyright, finding that an author’s copyright rights are not infringed by another work, as the two works share only an idea, not the expression of that idea. For example, one cannot retain copyright rights in any and all software necessary for streaming video online because streaming video online is only an idea, which can be expressed in a number of ways. Rather, all that can be protected by copyright is the actual source code or object code that allows for video to stream online, and that code must actually be copied such that the two works are “substantially similar” in order to constitute copyright infringement. Nevertheless, given the importance of creating incentives for developers, courts have recognized copyright protection that extends not simply to the code itself, but to its organization or structure.

That said, while copyright protection for software is cheaper and easier to obtain than patent protection, copyright provides a more limited scope of protection. For example, copyright does not protect against independent creation of an identical work. This is because the first requirement in the two-step copyright infringement analysis deals with copying in fact, i.e. it must be shown that the putative infringer had access to the work being sued over, whether actual or implied, and that actual copying occurred. Where independent creation can be shown, copyright infringement cannot. However, software patents guard against independent creation because a patent grants a right to exclude others from making, using, offering for sale, or selling the invention, or importing the invention, into the U.S.