I have an idea that has to do with “social networking”. Do I patent or copyright it?

“What’s the deal with copyrights?” and “What’s the deal with patents?”

Copyrights protect works of authorship, but not abstract ideas. A work of authorship is something specific… it’s words on a page (including lines of code on a hard drive), it’s paint on a canvas (or colored pixels on a screen), it’s musical notes on an iPod.

The Harry Potter books begin with these lines:

“Mr. and Mrs. Dursley, of number four, Privet Drive, were proud to say that they were perfectly normal, thank you very much. They were the last people you'd expect to be involved in anything strange or mysterious, because they just didn't hold with such nonsense.”

Those lines are protected by copyright. But does JK Rowling own the idea of a story involving three kids who get into mischief and adventure at a magical school? No. That’s too much of an abstraction of her work. That’s the idea of her work, but not the expression. Copyrights cover only the expression, not the idea.

So let’s say your social networking idea involves making a separate social network for left-handed bowling historians. You can probably protect your logo with copyrights. You can probably protect some visual aspects of the web page layout. But you can’t protect the mere idea of a social network for left-handed bowling historians with copyrights.

What’s the deal with patents?

Patents cover functional inventions. New molecules for treating illness, new car components for faster or more efficient engines, new chips for better electronics, that kind of thing. Computer software does sometimes count. But once again, patents don’t cover abstract ideas, only applications of ideas.

It’s a little tricky, because the line between “abstract idea” and “application” is very blurry. I mean, even to the point where professional patent attorneys don’t always agree where the line is.

Without knowing more, it’s tough to tell if a “social networking idea” is abstract or concrete. (To be sure, I’m not asking to know more. Don’t tell me, it's your confidential information right now.) That’s the first hurdle.

The second hurdle is that your idea has to be new and non-obvious in order to be patented. My left-handed bowling historian thing is probably new, but probably not non-obvious from the perspective of the patent office. There are no technical challenges that one has to solve to make a social network for left-handed bowling historians, so that social network would probably be considered an obvious variation of existing social networks.

But let’s say you come up with some kind of really cool screening method. Let’s say you figure out — remarkably — a way to tell if someone is a left-handed bowling historian simply by scanning their retina. That would be amazing, and super-patentable. You could use that technology to limit access to your otherwise-unpatentable social network.

Now the bad news: let’s say your idea is patentable. How do you get a patent? Well, it costs money. The typical “retail” price of a patent application is about $10K to get it filed. Most of that is taken up by an attorney or patent agent who drafts your patent application. You can draft the patent application yourself, but it’s… hard.

Then let’s say you get a patent. That doesn’t mean competitors will respect it. You have to be ready to detect infringers and enforce your patent against them. This also costs money.

Big business is… tough.