Greg Aharonian wrote:
> So ask yourself. Does source code describe, explain, illustrate and/or
> embody the idea, processes, system (structure), methods of operation,
> and concepts in a computer programs (all aspects of which are ideas under
> patent law)? When patents and Web pages dealing with source code uses
> phrases such as "source code illustrates", are they using "illustrate"
> with the same meaning as in 102(b)? If so, this latter language of
> 102(b) raises its ugly head. I assume this is what Larry is referring to.
Actually, Greg, I wasn't trying to reach quite so far. That logic might make all software source code non-copyrightable, which is clearly not what was intended by Congress.
It is in the area of industry standards that copyright becomes difficult to sustain. When we require everyone to follow the same specification (we *intend* conformance), we cannot lock up that idea, process, system, method of operation or concept under an almost permanent monopoly merely just because it is necessary to express it in specific words.
That is also, I believe, why applicants for US patents are required to authorize copying of their specifications:
(d) A copyright or mask work notice may be placed in a design or utility patent application adjacent to copyright and mask work material contained therein. The notice may appear at any appropriate portion of the patent application disclosure. For notices in drawings, see § 1.84(s). The content of the notice must be limited to only those elements provided for by law. For example, "©1983 John Doe"(17 U.S.C. 401) and "*M* John Doe" (17 U.S.C. 909) would be properly limited and, under current statutes, legally sufficient notices of copyright and mask work, respectively. Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in paragraph (e) of this section is included at the beginning (preferably as the first paragraph) of the specification.
(e) The authorization shall read as follows: A portion of the disclosure of this patent document contains material which is subject to (copyright or mask work) protection. The (copyright or mask work) owner has no objection to the facsimile reproduction by anyone of the patent document or the patent disclosure, as it appears in the Patent and Trademark Office patent file or records, but otherwise reserves all (copyright or mask work) rights whatsoever.
It appears, by the way, that the PTO has not yet recognized that section 1.71(d) needs to be changed to deal with specifications in which no copyright notice appears (but for which copyright subsists per 17 U.S.C. 102(a)!). Furthermore, it is common practice for people (including patent attorneys) to modify previous patent specifications while describing new inventions, yet the authorization of 1.71(e) doesn't even mention derivative works. Notice that the sample copyright notice in 1.71(d) is dated 1983. Perhaps we should recommend an update.
/Larry Rosen
Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * fax: 707-485-1243
Received on Mon Apr 17 2006 - 20:10:00 GMT
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