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 your software and then change the programming language to achieve the same result, 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. Generally, pure software patents are not easy to obtain rights, and the combination of software and hardware will improve the authorization rate, but the pass rate is still not high on the whole.
5. The protection period and maintenance cost are different.
As for the relevant copyright protection fees stipulated by law, only the preliminary application fee will be paid, and there will be no subsequent maintenance fee.
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.
Which is better, software copyright or patent?
1, software copyright
Advantages: it can be protected without publicity, and the creator can quickly obtain copyright protection. Generally, authorization takes about 4 months. If you apply for software copyright in an expedited way, you can authorize it within one working day at the earliest. It allows copyright owners to quickly seize the market and obtain corresponding government funding.
Disadvantages: For competitors, they are also software developers. They can study your software, understand your ideas, and write software with the same effect according to your ideas without infringing your software copyright. At this time, the core thing in software, that is, the idea of software, software copyright can not be protected.
2. Software patent right
Advantages: Patents protect design ideas and schemes, so they are more protective, and patents can also put forward some patents that cannot be realized now. When technology is developed, patents can be realized, and then benefits can be obtained through licensing. This is how many large companies get their patent reserves.
Disadvantages: software patents must be protected by publicity, and the application time for invention patents is 1~2 years, so it is generally not urgent. The progress of software is relatively fast, and it is possible to miss the software market in the process of application.