Intellectual Property Boston College Law School March 18, 2009 Software – Copyright – Fair Use
Lewis Galoob Toys v. Nintendo Cartridges Game Genie Nintendo OS Nintendo NES
Clear. Play
Reverse Engineering Source Code Object Code 111010010000 10101011 01110000 01010010 01101110 00000100 111010010000 10101011 01110000 011110010000 01000011 01111001 01001100011 00000000 011110010000 01000011 01111001 001011001101 01101111 011001000001 00000010 10110011 001011001101 01101111 01100100 } Decompile Var {for variable function …} num, count, primes, …. Begin {of program} {*****initialize var … num : =2; {the prime num … count : =0; {number of pri … times : =0; {number of col … {*****ask user how many … write (‘How many prime … read (primes); writeln; {carriage returns} writeln;
Sega v. Accolade Licensee Sega OS Sega Genesis Accolade
Sega v. Accolade • Results – Intermediate copying not always privileged – Functionality does not eliminate all protection – Section 117 does not privilege the copying – Intermediate copying is fair use • • Commercial purpose, yes, but okay Harm to market not dispositive, where fair compet. Nature of work is functional Copied the entire work
Sony v. Connectix Licensees Sony BIOS VGS Sony Playstation MAC
Gottschalk v. Benson Binary Coded Decimal Pure Binary Number 53 = “ 5” 0101 “ 3” 0011 110101 The method of converting signals from binary coded decimal form into binary which comprises the steps of (1) storing the binary coded decimal signals in a re-entrant shift register, (2) shifting the signals to the right by at least three places, until there is a binary 1 in the second position of said register, (3) masking out said binary 1 in said second position of said register, (4) adding a binary 1 to the first position of said register, (5) shifting the signals to the left by two positions, ….
Cases After Benson • Parker v. Flook (1978) – Method for updating alarm limits on computer to monitor pressure – Held unpatentable: nothing more than an algorithm • Diamond v. Diehr (1981) – Method for curing rubber w/ steps calculated by computer – Held patentable: part of larger process, even if algorithm is the only new feature • Freeman-Walter-Abele Test – (1) Does patent claim recite algorithm directly or indirectly? – (2) If so, is invention as a whole nothing more than algorithm?
State Street Bank v. Signature Pooled Mutual Fund A data processing system … comprising: (a) a computer processor means for processing data; (b) storage means for storing data …; (c) first means for initializing the storage medium; (d) second means for processing data regarding assets in the portfolio and each of the funds from a previous day and data regarding increases or decreases in each of the funds’ assets and allocating the percentage share that each fund holds in the portfolio; ….
Software Patentability • Requirements for Patentability – Subject Matter – Utility – Novelty – Nonobviousness – Enablement
Software Patents Issued by PTO
Nonobviousness • Software difficulties – Lack of experienced patent examiners – No good classification system – No good body of documented prior art • PTO efforts to address – Hiring experienced patent examiners – Cooperating w/ industry to document prior art – More involvement of industry in examination
Amazon v. Barnesandnoble • Prior art references – Compuserve Trend (stock chart purchase) – Web Basket (shopping cart using cookies) – Yesil Book (ref. to “Instant Buy Option”) – Oliver’s Market (shopping cart) – ‘ 780 Patent (web page delivery)
Hypothetical • Facts – You have a programmer friend w/ software – Wants to market a program over the internet • Questions – Does he need to worry about other patents? – Can he secure a patent himself?
Evaluation • Arguments against – Increases costs of creating new programs • Search costs • Licensing costs • Attorneys fees – Advantages large players over small players – Not necessary – PTO ill-equipped to issue • Arguments for – No different from other industries – Becoming increasingly capital intensive (e. g. Windows) – PTO issues are transitional issues
Sui Generis Proposals • Menell – – – Based on patent system: same requirements Faster approval Shorter duration Privilege for reverse engineering Compulsory licensing of standards • Samuelson, et al. – Sui generis framework – Short period of anti-cloning protection – Registration and licensing system
Administrative • Next Class – Start Trademark • Read through VI. C. 1 – Distinctiveness
Administrative • Next Class – Finish Software • Read V. C and D.
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