Patent vs Copyright: Which One Do I Need?

March 8, 2017
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Patent vs Copyright: Which Is The Correct IP Protection You Need?

Patents and copyrights are two vital aspects of intellectual property law, but many people are confused as to the difference between the two. This can present a serious problem when your business produces something in need of intellectual property protection.Patent vs Copyright: Which Is The Correct IP Protection You Need?So, what is the difference between patent and copyright? At its very core, the difference resides in both the specific creations that can be protected by each and the ease or difficulty with which protection can be registered. Explore the differences between patent and copyright, learn which you need for your business, and how an intellectual property lawyer can help.

Patent (Utility & Design)

The U.S. Patent and Trademark Office issues several different types of patent documents offering different kinds of protection and covering different types of subject matter, including utility patents and design patents. A utility patent protects inventions of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof.

A design patent protects new, original and ornamental design embodied in or applied to an article of manufacture. The basic requirements for patent eligibility are that the invention is new, useful (for utility patents) and nonobvious – it must be unlike anything else out there, taking into account any related prior art, and it must solve a problem in such a way that anyone with reasonable skill in the associated art would not consider an obvious logical next step.

Examples of specific things that can be patented include (but may not be limited to):

  • Machinery
  • Unique rules to a game
  • Manufactured products
  • Drugs and other chemical compositions
  • Clothing designs
  • Musical instruments
  • Computer hardware and software
  • New plant varieties which were asexually reproduced under controlled conditions (protected by a plant patent)

Utility patent protection lasts for 20 years after the date of filing, while design patent protection lasts 14 years, and grants complete control over the invention. Patent protection allows you to stop others from producing, selling, offering for sale, importing or otherwise using the invention you have patented.


Copyright protection extends to original works of authorship. This can range from paintings to sculptures, to novels, television shows, movies and music. Copyright protection lasts for 70 years after the death of the author, or 95 years after publication if the copyrighted item is of corporate authorship.

Copyright protection provides you 6 exclusive rights in the copyrighted work, including the right to reproduce the work, the right to prepare derivative works and the right to publicly perform or display the work, to name a few.

Ideas Aren’t Protected

There are many things that are not protected by copyright or patents. The most important of these is the abstract idea. It’s an important concept to remember, that simple ideas cannot be protected. To gain copyright or patent protection, the work/invention must be physically expressed in some way.

How to Obtain Patent vs Copyright Protection

Copyright protection is automatic. Copyright protection is secured the moment a work of authorship is created, that is, once it is fixed in a tangible medium, e.g., writing it down on a piece of paper. Registering your copyright with the federal government provides you certain additional protections and presumptions, such as a presumption of validity and ownership.

A Patent, on the other hand, must be obtained through registration. This process is more difficult than copyright registration and can take up to a year or more from your date of first filing. You need to conduct extensive research and complete detailed registration paperwork, which may go through several rounds of revision, before you are approved.

Seeking Help from an Intellectual Property Attorney

If you need to secure any sort of IP protection, and especially for complex filings like patents, it’s important to have the help of a qualified intellectual property attorney. Ensuring that your patent or copyright is valid is the core of keeping your business solvent, and there are a lot of mistakes and pitfalls to avoid.

If you would like advice in this area or have any questions regarding the patent vs copyright matter, please contact me, Shane Birnbaum, at 201-806-3364.