Intellectual Property Law Commons^™

The Protection Of Property Rights In Computer Software, Edward W. Rilee

Akron Law Review

During the last decade a number of attempts have been made by the courts in the realm of patent and copyright law to settle the issue of the protection of property rights in computer software. These traditional methods of protection, however, have not been able to assimilate this relatively new technological invention. Likewise, at the start of a new decade, little or no progress towards a comprehensive form of software protection can be detected. This paper will examine the problems associated with using federal patent or copyright law to provide computer software protection and discuss why state trade secret protection …

Protection Of Computers And Computer Software Before The United States International Trade Commission: In Re Certain Personal Computers And Components Thereof, Nicholas N. Leach

Georgia Journal of International & Comparative Law

No abstract provided.

Comment With The Copyright Office Regarding A Proposed Exemption Under 17 U.S.C. Section 1201 For Software Security Research (Class 25), Candice Hoke

Law Faculty Reports and Comments

Professor Candice Hoke, Cleveland State University, and others (Douglas W. Jones, University of Iowa; Professor Deirdre Mulligan, University of California, Berkeley; Professor Vern Paxson, University of California, Berkeley;Professor Pamela Samuelson, University of California, Berkeley; Bruce Schneier Erik Stallman, Center for Democracy & Technology (CDT); comment addressing Proposed Class 25: Software Security Research and an exemption for software security research in order to promote the active research and testing efforts necessary to keep pace with evolving cybersecurity risks. Software and related access controls are increasingly embedded in a wide range of systems, from consumer goods to medical devices to infrastructure to …

Ip Basics: Copyright For Digital Authors, Thomas G. Field Jr.

Law Faculty Scholarship

Written for computer artists and programmers, this paper addresses the basics, as well as the registration of multiple works, difference between works that are and are not prepared "for hire," and other matters of interest to entrepreneurs as well as to free-lance programmers and artists.

Software Patentability After Prometheus, Joseph Holland King

Georgia State University Law Review

This Note examines the history of patentability of abstract ideas and the tests that courts have used to make the determination of whether an invention incorporating an abstract idea is patentable. Part I provides a history of the four seminal cases related to patentable subject matter, as well as some more recent on point decisions. Part II changes focus to the various tests and factors that have been used by the courts, exploring the history of each, discussing the treatment by the Supreme Court, and determining the strengths and weaknesses of each. Based on the discussion in Part II, Part …

Fixing Notice Failure: How To Tame The Trolls And Restore Balance To The Patent System, Mark Rawls

William & Mary Business Law Review

Patent litigation has become more frequent, more uncertain, and more expensive. Much of this can be traced to the rise of patent trolls asserting vague and uncertain software patents. Trolls have been derided as bringing frivolous and vexatious suits against productive companies, sapping the very same innovativeness that the patent system is supposed to encourage. Instead, companies are subject to nuisance-value suits as an ordinary course of business; for less established companies, such suits can threaten their very existence. Often, because of uncertain rules about claim construction and the granting of very broad patents, the accused infringer has no notice …

Aftermarketfailure: Windows Xp's End Of Support, Andrew Tutt

Michigan Law Review First Impressions

After 12 years, support for Windows XP will end on April 8, 2014. So proclaims a Microsoft website with a helpful clock counting down the days. "What does this mean?" the website asks. "It means you should take action." You should "migrate to a current supported operating system - such as Windows 8.1 - so you can receive regular security updates to protect [your] computer from malicious attacks." The costs of mass migration will be immense. About 30% of all desktop PCs are running Windows XP right now. An estimated 10% of the U.S. government's computers run Windows XP, including …

Structure From Nothing And Claims For Free: Using A Whole-System View Of The Patent System To Improve Notice And Predictability For Software Patents, Holly K. Victorson

Michigan Telecommunications & Technology Law Review

No uniform or customary method of disclosure for software patents is currently employed by inventors. This Note examines the issues that develop from software patent claims disclosed at various levels of abstraction, and the difficulties encountered by courts and the public when investigating the contours of the software patent space. While the courts have placed some restrictions on the manner in which software inventions are claimed, they are easily bypassed by clever patent applicants who desire to claim the maximum scope of their inventions. In the long run, however, a large “patent thicket” of overlapping and potentially overbroad inventions will …

The Gpl Meets The Ucc: Does Free Software Come With A Warranty Of No Infringement Of Patents And Copyrights?, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The GNU General Public License, known as the GPL, is the cornerstone of free software. The GPL has served as the organizing document for free software, providing a structure that has helped transformed the development of software and electronic devices. Software licensed under the GPL may be freely copied and adapted. The source code for the software is made available, to enable anyone to study and change it. The GPL does have "copyleft" restrictions, intended to keep the software free for others. If someone adapts and redistributes GPL’d software, they must likewise allow access to their source code. The GPL …

Protection Of Intellectual Property Rights In Computers And Computer Programs: Recent Developments , Alan C. Rose

Pepperdine Law Review

The following article examines the protection offered to computers and computer programs, under the various applicable patent, copyright and trade secret laws. Concerning patent protection; the author discusses the history and current status of the patent laws, and analyzes in detail the landmark case of Diamond v. Diehr. Discussed also is an analysis of copyright protection for computer programs, offered by the 1980 amendments to section 117 of the 1976 Copyright Act; which paved the way for the increased protection.

Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel

Pepperdine Law Review

No abstract provided.

A Generation Of Software Patents, James N. Bessen

Faculty Scholarship

This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article sets out to analyze both intellectual property laws and tax systems as applied to software. The article also analyzes software within the intellectual property doctrinal framework, and examines both the federal and state tax systems governing software.

Mge Ups Systems, Inc. V. Ge Consumer & Industrial, Inc., Alexander Hill

NYLS Law Review

No abstract provided.

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

This article sets out to analyze both intellectual property laws and tax systems as applied to computer software. It analyzes software within intellectual property's established doctrinal framework, a difficult task due to the fact that software can encompass some combination of the traits of copyrights, trade dress, patents, and trade secrets. It then examines both the federal and state tax systems governing software. It shows that fitting software within current tax schemes presents unique challenges, as software contains both tangible and intangible elements, is subject to varying intellectual property protections, and can be delivered through various media. The article argues …

A Comparative Perspective On The Patent Eligibility Of Software Inventions, Hung-San Kuo

Maurer Theses and Dissertations

Computer software is considered similar to an algorithm, a mental activity, or an abstract idea, so whether or not it meets patent eligibility is full of controversy. Although computer software products are sold all over the world, each jurisdiction deals with them differently based on individual regulations. If there were an objective and proper way to deal with this subject matter, it would reduce the number of debates and narrow the gap of patent protection among different jurisdictions.

The meaning of "invention" in patent law in each jurisdiction is the most important factor affecting the determination of patent eligibility, which …

Software Wars: The Patent Menace, Andrew Nieh

NYLS Law Review

No abstract provided.

Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Publications

The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other …

Vol. Viii, Tab 38 - Ex. 74 - Thomas Deposition (Rosetta Counterfeit Software Customer), Diana Thomas

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Vii, Tab 38 - Ex. 63 - Hill Deposition (Rosetta Enforcement Specialist), Michael Hill

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

This article examines the federal income tax regime governing intellectual property using normative criteria in evaluating taxes: equity and efficiency. The article first evaluates the current intellectual property tax scheme in terms of horizontal equity, identifying differences in tax treatment of what appear to be similar intellectual property activities. It argues that disparate tax treatments between seemingly similar intellectual property owners signal that flaws may exist in the tax system. The article then assesses the efficiency of the intellectual property tax system, examining numerous tax subsidies for intellectual property and their effectiveness in promoting economic growth. It argues that many …

Contract Law In Context: The Case Of Software Contracts, Robert A. Hillman

Cornell Law Faculty Publications

The membership of The American Law Institute unanimously approved the “Principles of the Law of Software Contracts” in May of 2009. In this essay for a symposium in the Wake Forest Law Review, I draw on my experience as Reporter on the ALI project to add my perspective on an interesting general question: Is specialization of contract law wise and, if so, in what contexts? I certainly cannot definitively answer the question of whether in the abstract society is better off with general or specialized law, but my experience in drafting the software rules, along with Associate Reporter, Maureen O'Rourke, …

The Microsoft Chronicles, Rudolph J.R. Peritz

Articles & Chapters

No abstract provided.

Vol. Vi, Tab 38 - Ex. 29 - Email From Jason Calhoun, Jason Calhoun

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Alternative Software Protection In View Of In Re Bilski, Charles Duan, Lauren Katzenellenbogen, James Skelley

Scholarly Articles in Law Reviews & Journals

The United States Court of Appeals for the Federal Circuit's (CAFC) en banc decision, In re Bilski, redefined the standard for patenting processes including business methods and computer software. In Bilski, the Federal Circuit departed from the "useful, concrete, and tangible result" test it had established in State Street Bank & Trust Co. v. SignatureFinancialGroup,Inc., which had been the standard for the past ten years. The Federal Circuit returned to a test articulated nearly 40 years ago by the Supreme Court in Gottschalk v. Benson, and clarified that State Street was "never intended to supplant the Supreme Court's test.", Under …

Sequential Innovation, Patents, And Imitation, James Bessen, Eric Maskin

Faculty Scholarship

How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980?s provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among …

Information May Want To Be Free, But Information Products Do Not: Protecting And Facilitating Transactions In Information Products, Kristen Jakobsen Osenga

Law Faculty Publications

Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection of the information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and …

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan Vacca

Faculty Publications

Over the past several years, many scholars have wrestled with the idea of how property rights for items created in virtual worlds should be conceptualized. Some have discussed utilitarian models, others have examined a Lockean natural rights theory, and still others view virtual property merely as another form of intellectual property. Regardless of how virtual property is conceptualized and which theory it best fits, most, if not all, commentators agree that the law ought to recognize virtual property as property and vest someone with those rights.

This Article moves beyond the initial debate about how property rights in virtual property …

Trying To Understand Software: Why Microsoft V. At&T Was Mistakenly Decided, Drew J. Koning

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.