By Stephen Hall
Once-in-a-generation patent reform was introduced in our country about five years ago. Similar to many major initiatives, it may have reaped a few unintended consequences as well. Andrei Iancu, current nominee for USPTO Director, has written about one of these consequences that affects certain procedures at the Patent Office. Among his many other writings, he also has written substantively concerning the patentability of software. This post examines Mr. Iancu’s writings on both topics, and offers some thoughts on how his thinking could affect future patent cases.
THE SUBSTANTIVE: WHEN SHOULD SOFTWARE BE PATENTABLE?
There is not and never has been a bright line rule on the patentability of software-based systems. Rather, patentability depends on the nature of the problem the system solves and the extent of the improvements over existing technology present in the solution.
Although most cases addressing the software issue begin by citing the 2014 Alice case by the Supreme Court, Mr. Iancu was Continue reading
Written by Kate Van Namen, with contribution from Ryan Chambers
If a software company makes a free tool available online, can competing developers use it without the company’s permission? According to a California jury, the answer is yes, so long as the developers’ actions constitute fair use under The Copyright Act.
The Copyright Act, 17 U.S.C. §§ 101, et. seq. gives copyright holders exclusive rights to copyrighted material. However, fair use is a limitation on those rights and can provide a powerful defense to copyright infringement. Fair use is an exception to the rule that no one may use copyrighted material without permission from the owner, and allows copying for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. If any given use qualifies as fair use, then no infringement has occurred. There are four factors which must be considered when evaluating whether the use of copyrighted material is fair: (1) the purpose of character of the use, including whether such use is Continue reading
By Stephen C. Hall
It goes without saying that businesses use software ubiquitously. Perhaps easier to miss at times is how any given company utilizes software – who uses a particular program and how many machines have the program installed – changes on a monthly, weekly or even daily basis. Such fluidity could expose your company to potential liability if it inadvertently allows too many copies of licensed software on its machines.
In this respect, software licenses contain provisions that every IT and human resource department should understand. For example, software seat licenses limit the number of times the licensee can install – that is, “copy” – a program on its computers. Exceeding that number could result in copyright liability.
This is because valuable software programs are protected under copyright law, and they are sold as part of well-planned licensing programs. One aspect of those programs is enforcement – the ability to objectively determine how many times a program was installed. The sophisticated software publisher uses the license contract to Continue reading