Key Takeaways

  • Copyright protects original works of authorship, not inventions.
  • Patents are the appropriate form of IP protection for inventions, including processes, machines, and compositions of matter.
  • Software and algorithms can be protected by both patents and copyrights, depending on how they're used and presented.
  • Filing a provisional patent can secure your priority date while you evaluate commercial potential.
  • Maintaining detailed records of invention development is critical for proving originality and ownership.

How to copyright an invention may be better worded as how to patent an invention. Although patents and copyrights are both used for intellectual property, the types of creations they protect are different.

Copyrights and Patents

A copyright grants its owner exclusive rights to his or her art or authorship, such as a painting or a novel.

If you've invented something new and want to protect your rights to your invention, however, you need to seek a patent. Patents give invention creators exclusive rights, which include the following:

  • Excludes others from making, selling, using, or offering to sell the invention or product in the U.S.
  • Excludes others from importing the invention into the U.S.

The U.S. Patent and Trademark Office grants patents to inventors who create novel and nonobvious inventions. Patent rights are granted in exchange for public disclosure of the invention in the patent. Patents have a limited time period. Typically, patents last about 20 years from date of filing with the Patent Office.

What Copyright Can and Cannot Protect

While the phrase “copyrighting your invention” is often used colloquially, it's important to note that copyrights do not protect functional inventions. Copyrights protect original works of authorship—including books, music, software code, and artwork—but do not cover ideas, methods of operation, or systems, which are typically protected by patents.

Inventions that involve functional elements—like a new machine, chemical compound, or method—require patent protection through the United States Patent and Trademark Office (USPTO). However, elements like user manuals, marketing graphics, or original code associated with an invention can be protected by copyright. Therefore, copyright and patent protection often work hand-in-hand.

Preparing a Patent Application

To get ready to file a patent application, follow these steps:

  1. Read the Patent Office guides.
  2. Choose an application type.
  3. Register at the USPTO.
  4. Have drawings made.
  5. Draft claims.

You may want to start by reading the Patent Office guides on how to apply. You'll find useful information on everything you need for a complete application.

You have the option to file a provisional or nonprovisional patent application.

A provisional patent application only requires a description of the invention. You may include a drawing. The office won't review this patent, but it will give it a filing date.

A provisional application allows you to secure a filing date as early as possible. You then have a year to find out if your invention is commercially viable. Filing a provisional application comes with several benefits, such as the following:

  • You have a lower filing fee than with a nonprovisional application.
  • It's easier to prepare because you don't have to include all of the information.
  • You're able to use the patent pending notice, which may deter infringement.
  • It extends the patent term by up to one year.
  • It helps you keep your invention secret because it's not published. You can use that time to test for commercial viability.

A nonprovisional application must be much more detailed in its description, and it requires drawings. When you file it, the Patent Office will start examining it.

You can register at the USPTO as a user. You don't have to file your application electronically, but you'll pay additional fees if you submit a paper application.

You might have to include a pen-and-ink drawing of your invention if it's necessary to show how it works. For instance, a drawing would be required to show a mechanical process, like an engine. However, you don't need a drawing to demonstrate how a computer program operates.

Photographs aren't acceptable. You'll probably want to hire a professional draftsman, who typically charges $75-$150 per sheet. Make sure whoever you hire provides free revisions, since the Patent Office may request them.

Claims are critical to your patent application, as they define the limits of what your patent covers. You can think of a claim in excluding others from using, making, and selling only what you claim. If you claim a substance as a binding agent, you can't exclude others from using the substance as a flavoring addition.

Your invention may have more than one claim, and a patent examiner will evaluate each. Write your claims as sentence fragments. An example for concrete may read like this:

  • “A rigid paving and building material made up of sand and stones”
  • “A hardened binder filling spaces between and adhering to sand and stones”

When you write your claims, think of the different components in your invention and how they relate and connect to one another. Consider a template where you fill in the spaces: “A [insert invention] comprising: [list each part separately] and [explain how the parts relate or connect].”

If you create intellectual property, you want to protect your rights to it as much as possible. Applying for a patent is a time-consuming, costly process. To ensure you adhere to all rules and guidelines, you may want to consult with a patent attorney.

International Protection for Inventions

U.S. patents do not automatically protect your invention abroad. If you plan to market your invention in other countries, consider filing for international protection. Here are common routes:

  • Patent Cooperation Treaty (PCT): Allows you to file a single “international” application that can lead to patent protection in over 150 countries.
  • Direct National Filings: You may also apply individually in each country where protection is desired, though this can be more expensive and time-consuming.

International applications must generally be filed within 12 months of your U.S. filing date to retain priority. Consider working with a patent attorney to plan your global protection strategy.

Keeping Your Invention Confidential

Before filing for a patent, maintaining the secrecy of your invention is critical. Here are some tips to help keep your idea confidential:

  • Use Non-Disclosure Agreements (NDAs) when discussing your invention with partners, investors, or service providers.
  • Document all stages of development in detail, including dates and participants.
  • Limit public disclosure until your patent application is filed, since public use or disclosure may jeopardize your ability to obtain patent protection.

If you must disclose your invention, a provisional patent application can serve as a placeholder, protecting your filing date for up to one year while allowing you to continue development or seek funding.

Copyright vs. Patent for Software Inventions

Software-related inventions often raise the question: should you copyright or patent your work? Copyright protects the literal expression of the software, such as source code and object code. This prevents others from copying the code directly.

Patents, on the other hand, can protect the functional behavior or novel processes within the software. For instance, if your invention introduces a new algorithm or method for data encryption, that process itself may be patentable, provided it meets the requirements of novelty and non-obviousness.

In many cases, software developers benefit from both forms of protection—copyright for the code, and a patent for the invention's functional implementation.

Frequently Asked Questions

1. Can you copyright an invention? No. Copyright protects creative expressions, not functional inventions. Inventions must be protected with patents.

2. What parts of an invention can be copyrighted? Only the original expression—like written manuals, diagrams, or software code—can be copyrighted. The invention's functionality must be patented.

3. Do I need both copyright and patent protection? Possibly. For example, software can be patented for its function and copyrighted for its code.

4. What happens if someone copies my invention? If you have a patent, you can enforce it through legal action. Copyright may protect aspects like diagrams or written materials but not the invention itself.

5. Can I apply for international patent protection? Yes. Through the Patent Cooperation Treaty or by filing in individual countries, you can protect your invention abroad, but you must do so within one year of your U.S. filing.

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