Do we need a patent, copyright, or trademark to protect our product?

Full question:

I have a software package for personal medical records. We are selling it in the USA and now have a group in Ireland that wants a license to sell it in Europe. Do we need a patent, copyright, or trademark to protect our product?

• Category: Intellectual Property
• Date: 04/07/2025
• State: South Carolina

Answer:

It is possible to obtain a patent, and trademark and copyright registration for software that will be distributed overseas. Such registrations protect the value of the property and provide protection against infringing uses by competitors. I suggest you contact a local intellectual property attorney who deals with international registrations.

A copyright is an intangible right granted by statute to the originator of certain literary or artistic productions, including authors, artists, musicians, composers, and publishers, among others. For a limited period of time, copyright owners are given the exclusive privilege to produce, copy, and distribute their creative works for publication or sale.

Copyright is distinct from other forms of legal protection granted to originators of creative works such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which give businesses exclusive rights over words, symbols, and other devices affixed to goods for the purpose of signifying their authenticity to the public.

Under the Patent Act, only the original and authentic inventors may claim patent rights. An applicant for a utility patent must satisfy three basic requirements for a patent to be patentable: novelty, nonobviousness, and utility. In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .”

If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.