Copyright and patent are two different forms of intellectual property. Patent and software copyright are both a form of intellectual property, but they are very different, but people often regard patent and software copyright as one form.
The main differences are as follows:
1, according to different laws.
The basis of software copyright protection is the Copyright Law and the Regulations on the Protection of Computer Software.
The patent protection of software is based on patent law. For specific examination criteria, please refer to Chapter 9, Part II of China National Intellectual Property Administration Patent Examination Guide, "Several Issues Concerning Examination of Applications for Invention Patents Involving Computer Programs".
2. The protection principles are different.
Software copyright is automatically generated after the completion of software creation, and it is also a voluntary registration of software copyright. The purpose of registration is to reflect the effectiveness of notarization, mainly to declare the ownership of copyright, but also to strengthen the evidence for subsequent rights protection.
Software patents must be applied to the patent office for protection, so they must be actively applied. The patent system is based on the principle of "openness for protection".
3. Different protection objects
The materials submitted for software copyright application are source code and user operation manual, so software copyright protects expression, not ideas.
In this way, it is possible for competitors to study the software and then change the programming language. The result is the same, but because the code is different, it does not infringe copyright.
The software patent describes the design idea of the software at the time of application (note that it must be expressed in the form of technical scheme, or preferably combined with hardware), including the content of software flow chart, rather than mainly explaining which programming language is used to realize it. Once authorized, anyone who adopts the design idea or scheme of software patent may constitute infringement.
4. The application pass rate is different.
Software copyright is a registration system and generally does not require substantive examination. As long as the materials submitted during the formal examination meet the requirements and do not violate the provisions of the copyright law, the software copyright can be granted, and the registration pass rate is extremely high.
Software patents need formal examination and actual examination.
Formal examination is mainly to examine whether the patented materials meet the application requirements. After the formal examination is passed, it will be made public, and then it will enter the substantive examination to examine whether the patent meets the requirements of the patent law, which must meet many requirements such as novelty, creativity and practicality.
5. The protection period and maintenance cost are different.
For citizens' works, the relevant copyright protection period stipulated by law is 50 years after the author's life and death; For the works of legal persons and other organizations, the relevant copyright protection period stipulated by law is 50 years.
In terms of cost, only the initial application fee will be paid, and no maintenance fee will be charged in the future.
Generally speaking, software patents can only be applied for invention patents, and the protection period is 20 years from the date of application.
The invention patent needs to pay an annual fee every year, and failure to pay after the expiration is regarded as giving up the patent right.
6. Different advantages and disadvantages
Software copyright can be protected privately, and creators can get copyright protection quickly. Generally, authorization takes about 4 months, and it can be authorized within one working day as soon as the software copyright is urgently applied. It allows copyright owners to quickly seize the market and obtain corresponding government funding.
legal ground
Article 10 of People's Republic of China (PRC) Property Law
The right to apply for a patent and the patent right can be transferred.
Where a unit or individual in China transfers the right to apply for a patent or the patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with the provisions of relevant laws and administrative regulations.
Where the right to apply for a patent or the patent right is transferred, the parties concerned shall conclude a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration.