accused device, composition, or process embodies all of the elements of a valid patent claim or accomplishes substantially the same function in substantially the same way to achieve the same result. A patent’s breadth is counterbalanced by a term that is short relative to the duration of copyright protection. A patent lasts for 20 years from the application filing date—roughly one-fifth the length of copyright protection.

Despite these differences in scope, the rights granted by copyright and patent law are similar in an important respect—they do not vary much across the wide range of respective forms of subject matter. Under copyright law, a motion picture costing tens of millions of dollars to produce is treated in the same manner as a relatively modest graphic image on a shampoo bottle. The same is largely true for patent protection, which affords pharmaceutical discoveries that could cost hundreds of millions of dollars to develop comparable protection to relatively modest advances in computer software, although the patent system has subtly differentiated patent protection across technological fields. Copyright law affords somewhat greater categorical variation, as reflected in the distinctive rules applicable to music compositions, which are subject to compulsory licensing, and sound recordings, which only enjoy a limited public performance right for broadcast transmissions. In general, however, both copyright and patent can be characterized as granting exclusive rights across broad fields of innovative and creative endeavors, although subject to statutory and jurisprudential variation in scope, rights, exceptions and defenses.

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