/ Is Computer Software Patent or Copyright?

Is Computer Software Patent or Copyright?

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Manish Jindal

December 12, 2023


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Is Computer Software Patent or Copyright?

In today’s digital age, computer software plays an integral role in nearly every aspect of our lives.

From the apps on our smartphones to the programs powering complex industries, software is the driving force behind technological advancements.

But have you ever wondered how software is legally protected? Is it through copyrights or patents?

While patents guard inventions and novel ideas, copyrights secure original expressions and creative works.

This article gives you useful insight into “computer software patent or copyright.”

Software Copyright Protection: Safeguarding Creativity in Code

When programmers invest their time and effort into developing actual software, it becomes crucial to acknowledge and protect their creations.

Software is designed to simplify processes, making it imperative to value and safeguard the work of its creators.

In India, the Copyright Act of 1957 provides protection for software or computer programs under the category of “Software work,” which falls under the broader umbrella of “Literary works.”

According to Section 2(ffc) of the Act,

“computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;

Furthermore, Section 2(o) of the Act states that

“literary work” includes computer programmes, tables and compilations including computer databases.

The purpose of copyright is to safeguard an author’s creative expression, which includes any original features present in software code and its operations.

When applying for software copyright with the copyright office, submitting copies of both source code and object code is a necessary requirement. These codes represent the protected expression of the applicant’s work.

The copyright law of India serves a crucial purpose: to foster creativity, encourage the production of original works, and contribute to the overall development of society and the nation.

However, it’s important to note that the law does not protect works that are created by substantially copying the expressions of others.

Such works are deemed to infringe upon existing copyrights and are therefore considered non-copyrightable subject matter.

While copyright provides a level of protection for the expression of ideas, it is worth considering the limitations of copyright protection when compared to patents.

Patents offer more robust protection by safeguarding the underlying idea and facilitating the economic exploitation of the work.

However, the standards to meet patent criteria are considerably high, and the examination process is stringent.

Navigating the Terrain of Software Patent Protection

Computer or Software programs are generally not eligible for patent protection as they are not considered patentable subject matter.

Nevertheless, there are some exceptional cases where software may qualify for patentability.

To obtain a patent for a software-based invention, certain crucial factors need to be demonstrated:

  1. The invention must meet the requirements for patent eligibility.
  2. The invention must be capable of being industrially applied.
  3. The software must be new, meaning it hasn’t been previously disclosed or known.
  4. The software must involve an inventive step, indicating that it is not obvious to someone skilled in the field.
  5. The disclosure of the invention in the patent application must adhere to specific formal and substantive requirements.

Section 2(1)(l) of the Patents Act 1970 defines a

“new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art;

However, according to Section 3(k) of the same Act, certain items are not considered inventions and therefore cannot be patented. These items are:

a mathematical or business method or a computer programme per se or algorithms;

The inclusion of the term “per se” in Section 3(k) was explained in the Report of the Joint Committee (Presented to the Rajya Sabha on December 19, 2001).

It clarified that this change was proposed because computer programs may sometimes include other elements that are ancillary or developed based on them.

The intention behind this amendment was not to reject such elements for patent grants if they meet the criteria of being inventions.

However, it was made clear that computer programs, as standalone entities, were not intended to be granted patents.

Despite the explanation given by Parliament, it can be argued that the interpretation of Section 3(k) of the Patents Act 1970 does not encompass all software for patent protection.

However, in cases where software meets all the criteria for patentability, it should be eligible for patent protection.

It is essential to have stringent scrutiny of software patent applications to safeguard against stifling creativity by granting patents solely on ideas.

Therefore, the software may be eligible for protection under the patent system if it demonstrates a “technical effect.”

It is important to highlight that the Guidelines for Examination of Computer-related Inventions (CRIs) outline several key aspects to consider during the examination process:

  1. Novelty: The presence of originality is a vital factor in establishing the patentability of an invention. Any subject matter, description, or information that is available or disclosed before the filing date or priority date will not be considered novel and, therefore, non-patentable.
  2. Inventive Step: The inventive step is assessed based on the following parameters:
    • Identifying the inventive concept in the patent
    • Identifying the common general knowledge in the state of the art on the priority date.
    • Identifying the differences between the claimed invention and the cited prior art.
    • Determining whether the differences involve inventive steps or are obvious in light of the existing state of the art.
  3. Industrial Applicability: An invention seeking patent protection must have industrial application, meaning it can be made or used in an industry.

According to the guidelines, since patents are granted in all fields of technology, it is crucial to determine whether a method or process relates to that field.

The evaluation determines if the alleged innovative step provides any technological improvement compared to previous methods.

The examination of the connection between software and hardware, specifically hardware that goes beyond the general-purpose machine, is done by evaluators to ascertain if computer-related inventions or software are not included in the definition of “per se” as outlined in Section 3(k).

Therefore, if the devices are claimed in combination with novel or known computer programs that make their functionality distinct, the claims to these devices may be considered patentable if they pass the triple test of novelty, inventive step, and industrial applicability.

In accordance with the Patents Act of 1970, computer programs are classified as non-patentable subject matter.

However, there are certain conditions that, if met, can make software eligible for patent protection.

To ensure software patentability, the following criteria must be fulfilled:

  1. Invention: The software-related invention must be intricately linked to computer technology and must demonstrate a technical effect or outcome.
  2. Additional Element: The invention must encompass more than just the technical effect produced by the software. It should incorporate a tangible element that interacts with the software, resulting in a unique combination of the software and the tangible component, thus forming a distinct invention.

By meeting these requirements, the software can transcend its general exclusion from patentability and be considered for patent protection.

This approach seeks to strike a balance between allowing innovation in the software domain and upholding the patent system’s fundamental principles.

Is Computer Software Patent or Copyright?

Software or computer programs are primarily considered subject matter for copyright protection.

However, under certain circumstances, if the requirements for patentability are met, an original computer program may also be eligible for patent protection.

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It is important to note that copyright protection is an inherent right granted to the software upon its creation, providing basic protection.

On the other hand, patents offer more extensive protection, specifically safeguarding the utilisation of the software.

In general, unless the conditions for patent protection are fulfilled, the software, if it is an original creation, will be protected under copyright laws.

This means that copyright protection is the default and automatic right granted to software creators.

Protecting Software: The Importance of Patents and Copyrights

Software patents and copyrights are crucial for safeguarding software source code, ideas, and inventions through legal means.

When deciding between a software patent and a copyright, developers, and companies need to consider what aspect of their software they wish to protect.

The main objective is to determine which is more important to safeguard: the code or the software’s concept and process.

The choice between patent and copyright entails different procedures and may influence future plans for the software.

Software is categorised as intellectual property (IP), which refers to original works with intangible value.

Copyright and patents are two legal avenues available for protecting IP.

Both patents and copyrights offer legal protection against the theft of software. However, they safeguard different aspects of the software.

Patents and copyright have distinct roles: patents safeguard concepts, while copyright shields written code.

When analysing a situation, it is important to take into account both the positive and negative aspects beyond the basic legal safeguards.

Obtaining software patents can be challenging, whereas copyright may not offer the desired level of protection for certain software needs.

Significant Court Cases Concerning Copyright Laws Related to Software

Court cases play a vital role in shaping the legal landscape surrounding software copyright.

Some notable cases have addressed the issue of copyright protection for software.

Here are a few examples:

  1. Wheelan Associates Inc. v. Jaslow Dental Labs (1986): The court ruled that the software, which utilised an original structure despite containing some unoriginal code, was protected by copyright.
  2. Computer Associates International, Inc. v. Altais, Inc. (1992): This case also dealt with software that included portions that were not original. In contrast to the previous case, the court ruled that only the original code within the software was eligible for copyright protection.
  3. Oracle America, Inc. v. Google, Inc. (2014): The Federal Circuit made a ruling on a case related to copyrighted software material. It was determined that the software in question was original and therefore subject to copyright protection.

These court cases highlight the challenges and complexities involved in determining the extent of copyright protection for software.

Related Article: Copyright Infringement Cases in India

Significant Patent Cases Relevant to Software

Over the years, several court cases have shaped the guidelines for patenting software, particularly in relation to the prohibition of patenting “laws of nature” and the eligibility criteria for software-related inventions.

Here are a few notable cases:

  1. Gottschalk v. Benson (1941): In this case, the court ruled that an algorithm itself could not be patented. However, they clarified that the algorithm in question lacked a specific application, which was the reason for denying the patent.
  2. State Street Bank & Trust Co. v. Signature Financial Group, Inc. (1998): This case established a test for patent eligibility, requiring an invention to produce a “useful, concrete, and tangible result.” Since the software can meet these criteria, the ruling was favorable for developers seeking software patents.

These cases illustrate the evolving landscape of software patentability and provide valuable precedents for determining the eligibility of software-related inventions.


The choice between obtaining a computer software patent or relying on copyright protection is a crucial decision for software developers to safeguard their intellectual property rights.

While copyright provides protection for the expression of original ideas in a tangible form, patent laws offer broader protections for software inventions.

Software developers face the challenge of protecting their innovative creations from being copied, especially when it comes to abstract ideas or the composition of matter within their programs.

Copyright protection can prevent the copying of source code, but it does not prevent the copying of the underlying functionality or idea.

By obtaining a patent, a software developer can establish exclusive rights over their invention, preventing others from utilising the patented algorithms or creating similar software programs.

This intellectual property protection grants the patent holder the ability to enforce their rights and potentially monetise their invention through licensing opportunities.

In essence, while both patents and copyright offer forms of protection for software, patent laws provide stronger and more comprehensive protection for software developers seeking to safeguard their innovative creations in the dynamic world of technology and mobile apps.


What is the Patent term of protection?

Patents for software programs last for 20 years.

What is the term of protection under copyright in India?

The protection provided by the Indian Copyright Law usually lasts during the lifetime of the author and an additional 60 years.

Can I have both a software patent and copyright protection for my software?

Yes, it is possible to have both a software patent and copyright protection for your software.

Copyright protection automatically applies once your work is created, while a software patent requires a formal application process.

Having both forms of protection can provide comprehensive coverage for different aspects of your software, such as the code and the underlying functionality.

Is it possible for you to identify instances of patent infringement?

If you cannot uncover and verify that another individual is using your patent, then the patent has no value as it would be difficult to distinguish code running on someone else’s server that implements your algorithm.

What is the difference between a software patent and a copyright?

A software patent protects the functional aspects of a software invention, granting the patent owner exclusive rights to the idea or process.

Copyright, on the other hand, protects the expression of an idea in a tangible medium, such as the source code.

Patents offer broader protections and cover the underlying functionality, while copyright focuses on the specific expression of the idea.

Can computer software be copyrighted and patented in the USA?

Yes, computer software can be both copyrighted and patented in the USA, depending on the specific aspects you wish to protect.

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