Intellectual Property for
Computer Scientists
Lisa Murray
The George Washington University
March 2007
What is intellectual property?
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An exclusive
property right
in intangible products
of investment, creative intellect, or labor
owned by the creator or by someone who
purchased it from the creator
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Why does it exist?
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Incentive to create
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Ability to recoup investment
Control over how a creation is used
Recognition for unique ideas
But without unduly restricting competition
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Limited duration
Some public uses are still allowed
Disclosure encouraged so others can improve on
the idea
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Should intellectual property
rights exist?
Case Study:
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Are people who make digital copies criminals
who could destroy the entertainment
business?
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Or are entertainment executives overreacting
as they cripple consumers’ ability to copy
music or video?
- David Lieberman, Piracy pillages music
industry, USA TODAY (Apr. 8, 2002)
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Should intellectual property rights exist?
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Should Internet users have the right to swap
music from CDs online?
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Should intellectual property rights exist?
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Should Internet users have the right to swap
music from CDs online?
Should be legal: 43%
Should be illegal: 46%
Undecided: 11%
- David Lieberman, Piracy pillages music
industry, USA TODAY (Apr. 8, 2002)
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Should intellectual property rights exist?
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Should record companies use technology to
prevent a buyer from making more than a few
copies of new CDs?
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Should intellectual property rights exist?
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Should record companies use technology to
prevent a buyer from making more than a few
copies of new CDs?
48% in favor
42% against
- David Lieberman, Piracy pillages music
industry, USA TODAY (Apr. 8, 2002)
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Forms of Intellectual
Property
Copyright
 Patent
 Trademark
 Trade Secret and Unfair Competition
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Trade Secrets and Unfair Competition
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Trade Secret
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Idea or information that derives economic value
from the fact that others don’t know about it, and
Is subject to reasonable efforts to maintain
secrecy
Unfair Competition
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False advertisement
Commercial disparagement
“Passing off” or “misappropriation
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Trade Secrets and Unfair Competition
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Can be used to protect intangible ideas that
can’t be copyrighted, trademarked, or
patented
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Anything can be a trade secret as long as
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It’s worth trading, and
It’s a secret.
Remedy is money damages
or sometimes an injunction
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Trademark
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A word, name, symbol, or device (just about
anything), alone or in combination
Used to distinguish the goods of one person
from goods made or sold by others
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Trademark
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Permits consumers to identify the source of goods
or services
Consumers know what they’re getting
Businesses can develop goodwill
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Other Kinds of Marks
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Service marks: perform the same
function for services rather than products
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Certification marks: certify that goods or services
have certain characteristics
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Collective marks: indicate membership in an
organization
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Trademarks
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Mark must be distinctive
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Arbitrary or fanciful
Suggestive
Descriptive only if there is a “secondary meaning”
Not deceptive
Registration not required, but . . .
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US Customs will assist in battle vs. counterfeits
Easier to prove mark ownership
Ownership enforced over wider territory
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Trademark Infringement
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“Likelihood of confusion” test
Remedies: money damages, injunctions
Sometimes criminal prosecution
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Cybersquatting:
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Registering or using domain name similar to a
trademark
With bad-faith intent to profit from the business
goodwill of the mark
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Copyright
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A limited economic right in a method of expressing
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An original work of authorship
fixed in tangible form
perceivable directly or with the aid of a machine or device
Limited duration
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Author’s lifetime + 70 years
Works for hire: 95 yrs from publication, 120 yrs from creation
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What is copyrightable?
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Literary works (including computer programs)
Musical works and lyrics
Dramatic works
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and audiovisual works
Sound recordings
Architectural works
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What is NOT copyrightable?
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The idea being expressed
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Facts cited
Information already in the public domain
The general idea or opinion expressed
The author’s identity
The author’s reputation
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Only the copyright holder can:
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Reproduce the copyrighted work
Prepare derivative works
Distribute copies to the public
Publicly perform the work
Publicly display the work
For sound recordings: perform the work
publicly through digital audio transmission
(Moral rights in visual art works)
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Copyright infringement
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Registration not required to create a
copyright, but generally needed to fight
infringement
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Remedies
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Money damages and injunctions
Destruction of infringing products
Prohibition on imports to the US
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Patent
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The right to exclude others from:
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Making
Using
Selling or offering to sell, or
Importing an invention
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Disclosure: to get a patent, the inventor must
disclose how to make the invention
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Limited duration: Utility patents last 20 years from
the date the patent application is filed
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What kinds of patents are there?
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Unlike copyright, a patent protects the
underlying idea, not just a particular
embodiment
Three kinds of patents:
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Utility: the most common type
Design: 14 year’s monopoly on the ornamental
appearance of an article of manufacture
Plant: for new varieties of discovered or invented
plants that are asexually reproduced
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What qualifies for a utility patent?
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Novel
Useful
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Functional
Tangible
Not obvious
Patentable subject matter
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What is patentable subject matter?
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A machine
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Mechanical device
that performs some function
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A computer
A bicycle
A digital camera
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What is patentable subject matter?
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An article of manufacture
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Something man-made by transforming raw or
prepared materials
a very broad category
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A bike helmet
A three-ring notebook
A waterproof hiking boot
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What is patentable subject matter?
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A composition of matter
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Chemical compound
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Viagra
Mixture of multiple substances
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A shampoo
An axle lubricant
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What is patentable subject matter?
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A process . . .
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A method of making, using, or doing something
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A method for synchronizing clocks over a network
A method for monitoring the temperature of a furnace
An improvement of an existing process
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A better method for synchronizing clocks over a network
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What is patentable subject matter?
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A process
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A new use for an existing product
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A cold medicine that cures cancer
A business method (sort of)
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virtual shopping cart
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What is NOT patentable?
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An abstract idea
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A software algorithm
Vaporware
A mathematical formula
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What is NOT patentable?
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Laws of nature
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Mathematical observations of the universe
Anything “discovered” rather than “invented”
Physical phenomena
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Electrical properties of atoms
Organisms found in nature
rather than genetically engineered
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What is NOT patentable?
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Certain “icky” inventions
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Illegal items (crack)
Inventions “embracing” a human being (cloning)
Atomic weaponry
Medical procedures are patentable . . .
but cannot be enforced
against a medical practitioner
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Getting a patent
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PTO application process
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“He who represents himself has a fool for a client.”
– Abraham Lincoln
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Timeframe varies, especially in computer field
Time limits
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apply by one year from date printed, published,
used, sold or offered for sale
Shhh!
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Deal or no deal?
Special Issues in Protecting
Computer Software
How can I copyright my software?
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Copyright Act of 1976 expressly allows
copyrighting of computer code
Both source code and object code are
protected
Extends to code embedded in chips
Protects both operating systems and
applications
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How can I copyright my software?
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Structure of the computer program
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Copyright for literary works ordinarily includes
protection for underlying structure and
organization of the work
Courts struggle when applying this to computer
code – structure necessary to accomplish the
program’s purpose is functional, and thus not
protected. Other structure is protected
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What about user interfaces?
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A user interface that is a “method of
operation” is functional, and not protected
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But an expression embodied in a method of
operation is protectible
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Lotus 1-2-3 menus
Mitel, Inc.: 4-digit command codes used to access
telecom hardware
Bottom line: who knows?
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History of software patentability
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1972: software is an unpatentable algorithm
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1978: an improved method of calculation is still
unpatentable subject matter
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Algorithm for converting from binary decimal to binary form
Method for calculating changing alarm limits in a
manufacturing process
1981: process including computer calculations
patentable because limited to particular use of
calculations
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Computer program for measuring temperature in rubber
manufacturing process
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Federal Circuit interpretations of Supreme
Court opinions
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Various additional qualifications considered:
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Process must have physical application
Process must have steps in addition to algorithm
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1994: oscilloscope data conversion circuitry
patentable as a “specific machine”
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1998: data processing system for implementing
mutual fund investment strategy patentable as
producing “useful, concrete and tangible result”
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1999: method for manipulating numbers in billing
system held patentable for same reason
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Next Step: Microsoft v. AT&T
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Supreme Court is currently reconsidering this
issue in the context of transnational patent
law
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A decision will issue this year
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No one has any real idea what the Court will
decide
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So how can I patent my software?
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Patent the computer program as a “process.”
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Patent the combination of a computer
program loaded onto a general-purpose
computer as a “machine.”
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How can I patent my software?
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Patent the program as recorded on a data
storage device as an “article of manufacture.”
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Note: A propagated electrical signal can be
an “article of manufacture”, even if it only
lasts for a moment.
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Case Study:
The Golden Disk
Case Study: The Next Great
Widget