I figure (2) is safer since I understand that if source code is
included in the provisional application one also needs to submit it in
the actual application.
Hi Omid, your assumption is correct. To follow through the provisional patent that is based on source code with a non-provisional patent application, you will need to submit the source code which would become public if the patent is granted. That said, there is a lot of time between the moment you submit the source code for the non-provisional and the actual grant, and that affords you other ways to deal with protecting your ip.
Based on the information from the source below, it appears a video on cd-rom would not provide sufficient patent protection.
As for logical flow charts, even if someone here @ onstartups has submitted it for their own patent application, it wouldn't mean they actually have adequate protection if the patent were challenged in litigation. I would recommend consulting an IP lawyer with experience studying case law in this field to help you determine whether flow charts are sufficient in lieu of the source code. I would personally recommend consulting Jeff Schox.
Here's some information that might be helpful to you from http://lahserpatent.com/software-patent/:
Two Reasons to Avoid Informal Software Patent Applications
There are two primary disadvantages to using source code as an
informal software patent. First, your initial source code will later
become publicly available when the Patent Office finally grants the
software patent. Usually, this does not happen for many years while
the patent examination process continues. During these years, software
development also continues. The initial source code becomes less
valuable as bugs are fixed, user interface is refined, and functions
Even later, if secrecy becomes important, the patent
application may be expressly abandoned. Abandonment ensure that the
the source code does not become public by publication at the US Patent
Office. Finally, filing a copyright application can directly protect
the source code even after the publication by the US Patent Office.
Second, courts require all applications (formal and informal) to fully
disclosure the software invention. If not, they will fail to meet the
legal requirements of a patent grant. So, even though the Patent
Office will not review an informal application, the application must
fully disclose the invention. Since the source code is the blueprint
of the software, it seems very likely that the disclosure is full and
Still, no lawsuit has tried the underlying legal theory of
writing a patent application using primarily the source code of a
patent. However, common sense will tell you that the source code IS
the invention, and, therefore, a full and complete disclosure of the
invention must be made when including the entire source code.