IP Law

The Internet is one gigantic copy machine.

Technology . . . is a queer thing. It brings you great gifts with one hand, and it stabs you in the back with the other.

The Patent System added the fuel of interest to the fire of genius

Introduction:

In this paper I would like to take you on a journey throughout the ages of copyright and patent law. Starting with the first recorded copyright infingment in 567AD and then into the future with a Sui Generis law for computer programs and information technology.

I have had the honour of studying the law of Intellectual Property with the legal profession and have learned much from them. As a marketer, I truly believed that law was beyond me, I hoped to learn but I did not realise how close to my own subject this could be.

The research that I have undertaken to put this paper forward has been a great eye opener. I will not attempt to say that I understand all the aspects of this particular field of law, but I have learned that there is a particular need to bring this law into this century and how the law has tackled copyright and patents over the years.

Each new century has brought its own Intellectual Property issues and with the changing of ideas, inventions and needs, the law too has changed to accommodate and govern in whatever fairness possible.

The Abbots Psalter, in the Year 567AD

The Abbots Psalter, was the first reported case of copyright infringement in the English-speaking world. It happened in 567AD. An Irish monk (later to become Saint Columba of Iona) visited a neighbouring monastery. He copied, without permission, the Abbott's Psalter. Columba was an empire builder. He had begun his own monastery on the Scottish island of Iona and went on to found several monasteries in Scotland and Ireland. Perhaps he wanted to build up his vast collection of Psalters for his monasteries. When the Abbot found out about this infingment of copyright, he demanded that Columba hand over the illegal copy to him, however Columba refused his demand. The Abbott then appealed to the King who ordered that the infringing copy of the Psalter be delivered to its proprietor; Columba then returned the illegal copy.

During the Middle Ages monasteries not only kept strict control over who could copy their materials but also which materials could be copied. By the 15th century copying manuscripts became a commerical enterprise, giving rise to a new profession: the lay copyist.

The Printing Press, 1456

The Printing Press was invented in 1456 by Johann Gutenberg in the little town of Mainz, Germany. The Gutenberg Bible took 5 years to get together and after 2 months, 300 copies of the first 1,282 page bible was finished. It marked one of the earliest examples of printing from movable type in Europe.

When Gutenberg came out with his printing press, the lay copyist then became a lay printer. Authors had sole rights over who copied their manuscripts; so the lay printer would purchase those rights from the author. However, no laws or regulations governed the printer. Competition among printers was fierce. Just as strong, however, was the widespread power of the press. The monarchy (and the church) came to fear the power of the press and to quiet the squabbling, they granted sole rights to print a specific title to their favorite printers. Sometimes this included the right to print a whole class or type of books. It is beleaved that this is where the term "copyright" came about. Certain printers had the right to print or copy certain materials.

Magna Carta of 1215

The Magna Carta was an attempt in 1215 to codify the relationships between the three great power blocks in the land, the King and his state apparatus, the Church led by the Pope, and the Barons with their castles and great estates. It was at first a short lived peace treaty after a period of civil war, forced upon the King by the Barons. However it has been a building block for many laws, amendments and the rights of mankind. This first paragraph of the Magna Carta tried to leave no one out and always gives me a shudder when I start to read it:

As Europe prospered in the later Middle Ages, more and more people became litarte and so there was an increase in demand for the printed word and so a new type of copyright was to entered the scean, the printer entrepreneur. With Gutenbergs moveable type printing press, once a work was fixed in type, copies became cheaper and cheaper as the costs of acquiring a work from a Creator and typesetting it, were spread over a larger and larger print run the secret of mass production. What's more, unlike hand copying, once a work was fixed in type each copy was identical. Transcription errors could not slip in between production of one copy and the next. In fact, invention of the printing press marked the true beginnings of the Industrial Revolution, mass production of standardised commodities.

Beyond altering the balance between Creator and Proprietor, the printing press also threatened to make copies so readily available that censorship would not be possible. It quickly became apparent to the Tudor monarchs of England, as well as those of continental Europe, that it was much easier and more effective to control a limited number of presses than a large number of subversive or heretical Creators. A hand written manuscript could, after all, only be read by a relatively few number of people, typeset copies, on the other hand, could be read by and corrupt the masses.

The first copyright law of 1476, the year William Caxton introduced the printing press in England, was a licensing law requiring printers to inscribe their name, location and titles of works they wanted to print on a register. If this was approved for publication, the Crown granted a copye to the printer. The rights flowing from this copye constituted copyright and were held by the printer Proprietor, not the Creator. The power of English printers was reinforced about 50 years later when Henry VIII in 1523, 1529, and 1534 imposed increasingly strict regulations on foreign craftsmen and finally prohibited the free importation of books

Henry VIII and his successors issued more and more proclamations against heretical or seditious books. The most important was issued in 1538 against "naughty printed books," which made it necessary to secure a license from the Privy Council or the Star Chamber of the King before any book could be printing or distributing. Why did Henry do this? I think we would all have our own opinion on that one.

The power of the printers was also fostered by other developments in English society. Since the time of King John and the Magna Carta in 1215, there had been a progressive erosion of the power of the English Crown. In effect, two things happened.

Firstly, the powers of the Crown were progressively limited by rights granted first to the barons at Runnymeade and then to other estates of the kingdom.

Gild Franchises

The gild franchises were the first monopolies of the English-speaking world, the monopolies against which Adam Smith was to bitterly complain and Thomas Jefferson to fear. The financial and physical capital and technical skills required of printers, together with their copyrights, made them candidates to become, collectively, what is called even to this day, the Fourth Estate, the Press.

Once the former guild was granted a charter of incorporation by Queen Mary, it re-organised itself into the Company of Stationers of London. With official recognition of the Company's monopoly, its bylaws and its copyrights, the Company soon became an official institute. The quasi-right known as Stationers' Copyright was based on royal prerogative or letters patent covering the entire publishing industry as an estate. This monopoly was assigned to members as a virtual freehold interest. No consideration was given to the author's right

Secondly, as the regulatory powers of the Estates grew the taxing authority of the monarchy declined. As Parliament, both the House of Commons and the Lords, increasingly refused to approve new taxes, monarchs realised they could raise money and political favours by granting charters to new groups or companies.

The number of monopolies soared, especially during the early years of the reign of Elizabeth I. Near the end of her reign, however, these Crown grants of monopoly were increasingly adjudged against the "common right and public good," and "against the common law," because, being a monopoly, it was "against the liberty of the subject," and "against the commonwealth..

The process came to a head with the 1624 passage by Parliament of the Statute of Monopolies to abolish the power of the guilds. This was part of an evolutionary process whereby the Common Law courts progressively stripped the guilds, with one notable exception, of their monopoly powers and assumed responsibility for their regulation.

The English Revolution, 1642-1660

Funding the monarch through grants of monopolies was a contributing factor to the English Civil War (1642-1649) that culminated in the beheading of King Charles I to be followed by Cromwells puritanical Commonwealth (1649-1660). During Cromwells Commonwealth, the copyright monopoly was in fact strengthened as a means of controlling the press.

The Long Parliament (1640-1660) continued the licensing statutes and strengthened censorship regulations with the threat of fines and imprisonment of authors, publishers, sellers, and buyers of scandalous or libellous materials or inaccurate accounts of Parliamentary sessions. All printed materials had to be licensed by Parliament and published by a member of the Stationer's Company. All presses outside of London, Oxford, and Cambridge were banned. Every item printed needed to have a title page giving the author, publisher, and place of publication.

The 1689 Revolution,

With Restoration of the Monarchy in 1660, however, the new King Charles II began once again to exercise the Royal Prerogative of granting monopolies including that to the Hudson Bay Company (1670). With respect to the copyright monopoly, the Restoration did not change the status quo. An act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses was passed in 1662 in keeping with previous laws. This new Act was regularly renewed under Charles II, James II, and in the early years of William and Mary. The rights of the printer/publisher under his copy remained perpetual.

The final constitutional battle between the Monarchy and Parliament occurred with The Glorious Revolution of 1689 when the last of the Stuart monarchs, the catholic James II, was deposed by an Act of Parliament and replaced by his protestant daughter Anne and her consort William of Orange.

There were many attempts by the Stationers Company to restore the old licensing system in the late 1690's and early 1700's, but it was not until 1710 that a new copyright system was enacted. In fact between 1695 and 1710, Scottish and domestic pirates made it increasingly difficult for London booksellers. Without the protection of a Licensing Act, any pirate could take a successful work, re-typeset it and then sell it at a lower price with no payments to the author, an editor or for promotion. Its not surprising then that very few new works were published during this literary troubled time.

The passing of the first real English Copyright act in 1709 began a new period in the evolution of the law of literary property. Up till then, the only recognised form of copyright which had existed was that which a member of the Stationers company secured by the entry of a copy in the companys register, and this was a purely trade regulation in which the author was completely ignored. The monopoly of a work for a specified number of years, which was occasionally granted to the writer by royal patent, was an exceptional case and only emphasises the generally defenceless position of authors.

In the sixteenth century, the Stationers company had virtual control of the entire trade and exercised a tolerably well organised supervision over its members. But, during the following century, a number of cases tended to undermine its authority, so that, at length, it became unable either to protect its members from the piracy of outside traders or to restrain the less orderly among its own ranks.

The company, at different times, tried using various tactics, to get back its old power and importance, but this was in vein. All their efforts merely served to demonstrate the impotence of the guild to control the trade in the old way, and to show that the day was past for imposing restrictive shackles upon so important a craft. The misdoings of piratical printers had long been a cause of vexation to the owners of the copyrights, and when, by the final lapse of the licensing laws in 1694, all restraint was removed, booksellers were at their wits end to know how to protect their property.

Finally, the aid of parliament was evoked, and, after several unsuccessful attempts to secure legislation on the subject, a bill, which is said to have been originally drafted by Swift, though much altered in committee, was passed in 1709, under the title An Act for the Encouragement of Learning.

In this degree, the right of an author to property in his work was, for the first time, recognised, or, rather, conferred upon him, by the statute law of the country. The act provided that, in the case of old books, the owners, whether authors or booksellers, should have the exclusive right of printing them for a term of twenty-one years from 10 April, 1710, and no longer. In the case of new books, authors were given the monopoly of printing them for fourteen years, and, if the author were still living, a further period of fourteen years from the end of that time.

These privileges were to depend upon entry of the work, before publication, in the Stationers register; and the interests of the public were considered in a clause which provided that, if anyone thought that the published price of a book was unreasonably high, the archbishop of Canterbury, or other authority, might, on appeal, fix a fair price.

Statute of Queen Anne

In the end, the Statute of Queen Anne granted an extension of the existing copyright monopoly of the Stationers Company for 21 years and granted an exclusive right for new works for fourteen years with an option to renew for the same period. In addition to this, the Statute recognised the Creator as the initial copyright holder to encourage learned men to compose and write useful books. However, it also explicitly recognised the financial interests of proprietors who, by sale or assignment of the author's initial copyright, were almost invariably printers, booksellers or publishers. This compromise continues to haunt copyright reform in modern times.

The Aftermath of the Statute, 1769 & 1774

The Statute solved the immediate problems of the British book trade. It provided a legal basis for stopping piracy, it encouraged publication of new works, it brought Scottish printers under a copyright regime, and it secured for the Stationers Company an extension of its monopoly over existing works for another twenty-one year. At the same time, it limited the duration of the copyright monopoly creating in this way, for the first time, a public domain for works that fell out of copyright. This was all achieved by granting the Creator an original copyright in a work.

The London booksellers had told tragic tales of piracy ruining the honest businessmen, their wives and children. Literary works were the inheritances of the innocents and pirates were, to all intents and purposes, stealing from the mouths of babies. These tales of piracy were adopted by those advocating authors rights and used to point out the problems of such a lax copyright protection law for authors.

A number of cases were brought to court by printers, booksellers, and publishers during the 1750's and 1760s to try and gain recognition of a common law copyright self-governing of the statutory rights established by the Statute of Queen Anne. Publishers argued that an author was entitled to enjoy the fruit of his labour, just like all other forms of property - in perpetuity. A publisher, being merely an assignee of the rights of the author, should therefore also enjoy such rights in perpetuity independent of statute. It was not, however, until 1769 that a definitive legal decision was rendered on the issue in the case of Millar v. Taylor.

Sir William Blackstone contributed to the plaintiffs' case. Blackstone had previously published Commentaries on the Laws of England in 1767 in which he interpreted copyright for the first time as a legal concept. Using Lockean natural law theory, he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brainwork. This became known as the sweat of the brow theory.

The scheme of the booksellers was, however, ultimately defeated in 1774 by the decision of the House of Lords in Donaldson v. Beckett. It was this decision that established the basic concept of Anglo-American copyright. When an author fixed his creation on a tangible medium, he obtained a common law right that is eternal in nature. However, he lost this common law right with publication, or, dedication to the public. In effect, the House of Lords accepted the dissenting opinion and reasoning of Justice Yates in Millar v. Taylor:

The New Industrial Revolution.

The French have a saying: Le plus les choses changent, le plus ils restent le mme, the more things change, the more they remain the same! In the case of copyright, this is very true. Just like the printing press of over 550 years ago, a new means of storing, displaying and distributing knowledge, or organised information, words, images and sounds, has emerged: digitisation.

Patent law in the United States.

Modern patents originated in Europe where the European sovereigns commonly awarded "letters patent" to their favoured inventors. These letters had their royal seal on the outside, with the writing open or patent for all to see. The first U.S. patent laws were enacted by Congress in 1790 as part of the Constitution. Before then, the King of England officially owned all the intellectual property created by the colonists. Bill Gates would not have liked that.

George Washington signed the First official United States Patent Grant on July 31, 1790, and the patent examiner was Thomas Jefferson. The first U.S. patent went to Samuel Hopkins of Pittsford, Vermont for a new method of making Potash, an industrial chemical used in making soap, glass, fertilizers and gunpowder.

It would appear that one of the first grant of a patent for an invention was in, what is now the United States seems to have been by the Massachusetts Bay Colony in 1640's. Even though pre-independence patent custom in the American colonies owes much to the English Statute of Monopolies of 1624, which restricted the right of the crown to grant monopolies so that henceforth they could be granted only for a limited period and only for manners of new manufacture. The Statute of Monopolies was never made directly applicable to the American colonies. During the period of the Confederation after independence had been achieved but before the adoption of the Federal Constitution of the United States, most of the states had their own patent laws, although only that of South Carolina specifically set out a provision granting inventors an exclusive privilege of using their new machines for a defined period 14 years. However, as noted by James Madison in the Federalist "the States cannot separately make effectual provision" for the protection of invention and so in drafting the Constitution of the United States, responsibility for providing such protection was entrusted to the Congress of the United States.

The United States Constitution, on which U.S. Patent Law depends, was drafted at the height of the industrial revolution at a time when the impact of patents was first being seriously felt in England. Additionally while the Constitution was being drafted in Philadelphia, John Fitchs steam-boat was undergoing trials on the Delaware River and Constitutional Convention apparently adjourned one afternoon to watch them. A pro-patent climate endured in the United States through much of the nineteenth century leading to the comments by President Lincoln and Mark Twain. However, the last two decades of the nineteenth century and the twentieth century have seen a number of climate changes. In the last two decades of the nineteenth century there was a period of economic depression and increasing concern about the power of "big business" leading to the passage of the Sherman Antitrust Act in 1890. This climate was reflected in the patent field by an increasing tendency of the courts to hold patents invalid. By the late 1890's the depression had run its course and patents came back into favour with the reviving economy.

In general the twentieth century has seen a vibrant interrelationship between the patent system and the application of antitrust laws. Although the first antitrust law, the Sherman Act was enacted in 1890, the courts did not start to really recognise it until the Theodore Roosevelt administration in 1901-1909. It was not until the 1930's that the patent system started to come under attack, being viewed as assisting in the maintenance of monopolies that were seen as being at least a contributing factor to the economic misery of the 1930s. This doubt about the patent system survived World War II and blossomed again in the depressed economic conditions of the 1970's, a period of strong anti-trust enforcement.

Federal patent laws have existed since 1790. The first United States Patent Act, that of 1790 was a short act of seven sections only entitled "An act to promote the Progress of Useful Arts". Under its terms any two of the Secretary of State, the Secretary of War and the Attorney General were empowered to grant patents for terms of up to fourteen years for inventions that were "sufficiently useful and important" provided that the grantee submitted a specification describing the invention, and where appropriate a model thereof, to the Secretary of State at the time of the grant.

Thomas Jefferson

In 1793 this act was repealed and replaced by a slightly longer act, the drafting of which is mainly accredited to Thomas Jefferson, who was at the time Secretary of State and therefore intimately involved in the administration of the 1790 Act. The Act is significant for its definition of what makes up patentable subject matter in the United States, which definition is almost unchanged up to now: any new and useful art, machine, manufacture or composition of matter and any new and useful improvement on any art, machine, manufacture or composition of matter.

A short description had to be filed with the application. However, before a patent could be granted it was necessary to submit a written description of the invention and of the manner of using or process of compounding the same in such full, clear, and exact terms, as to distinguish the same from all other things before known and to enable any person skilled in the art or science of which it is a part, or with which it is most nearly connected, to make, compound and use the same".

Another notable feature of the law was its early recognition that one patent might have a dominating effect over another and it specifically set out the principle that securing a patent on a particular improvement of a previously patented invention did not give the patentee of the improvement patent any right to use the invention that was the subject of the original patent or vice versa. However, the only examination of the application was a purely formal one and rights to patents under the 1793 Act were confined to citizens of the United States.

The 1800 Amendment

The 1793 Act was amended in 1800 to let foreigners who had been living in the United States for two years to obtain patents, subject to them making an oath that their invention had not, to their knowledge or belief been known or used previously in the United States or abroad. This act also provided for the first time the possibility of an award of treble damages for patent infringement.

So, what was meant by the term "new" in the early statutes varied a bit but after 1800 the courts considered simply whether the invention was known before the date on which the applicant for a patent claimed to have made his or her invention. In 1829 the US Supreme Court in the case of Pennock v. Dialogue saw the potential dangers of such an approach, which enabled the inventor to delay filing a patent application form until competition was imminent and construed the statute so as to create a statutory bar to deny patent protection to one who had previously publicly used his invention.

It was in 1832 that a new act expanded the category of potential patentees to cover all resident aliens who had stated their intention to become citizens of the United States, provided however, that any patents granted to the class of patentee become void if they did not work the invention publicly in the United States within one year of the grant. It also became possible to obtain reissue of a patent to correct errors in it.

Grant v. Raymond

1832 also saw the case of Grant v. Raymond. The US Supreme Court made it clear that failure to provide an satisfactory description of the invention was a ground under which a defendant might use when sued for patent infringement, it being held that: as a preliminary to a patent a correct specification and description of the thing discovered (was required). This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed and is the foundation of the power to issue the patent ...

There was a major review of the law in 1836 in response to complaints about the grant of patents for things that lacked novelty. Under this review the Patent Office was set up as part of the State Department and a specification had to be submitted to it and be examined for novelty before any patent would be granted. As a result of this provision of the 1793 Act requiring the inventor to distinguish his invention from the ones before was expanded on to require the applicant to "particular specify and point out the part, improvement or combination, which he claims as his own invention or discovery". This provision is the ancestor for our modern claims drafting worldwide. Other features of the 1836 law were to codify the law relating to statutory bars, to spell out the law relating to cases of conflict between competing applications a patent and provide a mechanism for establishing this. The Act also provided for the possibility of obtaining a seven year extension to the basic fourteen year term in certain circumstances. The 1836 Act also finally removed all the boundaries on the nationality or residence of those who could obtain a United States patents. However, it did not end all the discrimination on this point. United States citizens or residents that were intending to become citizens were charged $30.00, British subjects were charged $500.00 and all other foreigners $300.00.

In 1839 the law was amended to provide for a grace period, of two years for publication or use of the invention by the applicant before filing his or her patent application. The act also provided for an appeal from rejection of a patent application by the Patent Office to the Chief Justice of the District of Columbia.

In 1842 a statute was passed to provide for the grant of patents for "any new and original design for a manufacture or for printing on a fabric. However, the right to obtain a patent for such a design was confined to U.S. citizens or residents who were intending to become citizens.

In 1849 responsibility for the Patent Office was transferred from the State Department to the Department of the Interior.

The next major step forward was the introduction of the idea that to be patentable an invention not only had to be new and useful but also non-obvious. This charge was then put into effect by the courts rather than be statute, notably in the Supreme Court case of Hotchkiss v. Greenwood.

1861 saw a number of amendments being made. Among the more important were: the appointment of three examiner's in chief to hear appeals from the primary examiners of any application that had been rejected twice . The changing of the term of a utility patent to seventeen years from the date of grant ; and the provision of terms of three and a half, seven, or fourteen years for design patents at the choice of the applicant. Other characteristics of the 1861 revision provided for the printing of copies of the description and claims of patents and a requirement that to secure damages for patent infringement either the patented article had to be marked as such or the infringer had to have been given notice in some other way of the existence of the patent.

The Act of 1836

The 1836 Act had provided that the applicant had the right to amend his or her specification if the Patent Office raised objections to it. In 1864 the US Supreme Court imposed limits on this right to amend thereby forming the basis for the present rule that no new matter can be added during prosecution of an application.

Suffolk Mfg Co v. Hayden

In 1866 in the case of Suffolk Mfg Co v. Hayden the US Supreme Court laid the foundation for the modern doctrine of double patenting by holding that where the same inventor held two patents for the same invention, the second one was void.

In 1870 the legislation for patents was consolidated into a single act but without many major changes to it. Among the changes that were made were the following: removal of the requirement that if a patent had been granted abroad a U. S. application had to be filed within six months and replacement by a provision that the United States patent must expire at the same time as the foreign patent, subject to a maximum term of seventeen years from the time of the granting of the U. S. patent; codification of a requirement that the specification described the best mode known to the applicant for "applying the principle" of his invention; set up a mechanism for resolving disputes as to who had first invented a particular invention, by creating the post of an "examiner in charge of interference". It was also made clear that any public sale or use of the invention before the start of the two year grace period was destructive of novelty irrespective of whether that sale or use was by the applicant for the patent.

Paris Convention

The 1870's and 80's was a period in which many international organisations were formed. Among them was the Paris Convention for the Protection of Industrial Property, which came into being in 1883 and which the United States joined in 1887. Its most important provision was to give applicants who were nationals or residents of one member state the right to file an application in their own country and then as long as an application was filed in another country that was a member of the treaty within a specified time, to have the date of filing in the home country count as the effective filing date in that other country. The United States became a member of the Convention on May 30, 1887.

The Sherman Act

The 1890's saw two developments that, while not directly applicable to patents had a significant effect on the development of patent law: the passing of the Sherman Act in 1890 forming the basis for antitrust law and of the Evarts Act in 1891 creating the Circuit Courts of Appeals. In 1893 appeals from the Patent Office were transferred to the newly created Court of Appeal for the District of Columbia.

In 1897 some of the statutory bars to the grant of a patent were revised: 1) if a foreign patent had already been granted, a U. S application had to be made within seven months of filing of the foreign application and 2) it was made clear that prior knowledge or use was only a bar if it occurred in the United States before the applicant had made his invention.

In 1925 responsibility for the Patent Office was transferred to the Department of Commerce and Labour. In 1929, appellate review of decisions of the Patent Office was transferred from the Court of Appeals for the District of Colombia to the newly created Court of Customs and Patent Appeals. In 1930, the Plant Patent Act provided for the possibility of patent protection for asexually reproduced plants.

The Founders of Computers.

If we have looked at copyright and patent laws from the past, so that we can understand how we can use them in the future, we must give an acknowledgment to the founders of the information age and watch how the development of the computers and patent laws have developed over the years.

Konrad Zuse

Konrad Zuse (1910-1995) was a construction engineer for the Henschel Aircraft Company in Berlin, Germany at the beginning of World War II. Zuse earned the semi-official title of "inventor of the modern computer" for his chain of automatic calculators, which he invented to help him with his the lengthy engineering calculations.

In 1936, Zuse made a mechanical calculator called the Z1, the first binary computer. Zuse used it to explore several pioneering technologies in the development of the calculator: floating-point arithmetic, high-capacity memory and modules or relays operating on the yes/no principle. Zuse's ideas, not fully implemented in the Z1, succeeded more with each Z prototype.

In 1939, Zuse completed the Z2, the first fully functioning electro-mechanical computer. Zuse completed the Z3 on December 5, 1945, with recycled materials donated by fellow university staff and students. This was the world's first electronic, fully programmable computer. He used old movie film to store his programs and data for the Z3, instead of using paper tape or punched cards as paper was in short supply in Germany during the war.

Konrad Zuse wrote the first algorithmic programming language called 'Plankalkl' in 1946, which he used to program his computers.

The Z4 was then finished in 1949. The Z1 through to Z3 models were destroyed during the war. Zuse smuggled the Z4 from Germany in a horse-drawn cart, which he hid in stables on route to Zurich, Switzerland. He completed and installed the Z4 in the Applied Mathematics Division of Zurich's Federal Polytechnic Institute. It was in use there until 1955. The Z4 had a mechanical memory with a capacity of 1,024 words and several card readers. He no longer had to use movie film to store programs; he could now use punched cards. The Z4 had punches and various facilities to enable flexible programming including address translation and conditional branching.

Cuno Engineering v. Automatic Devices Corp

The 1930's and 40's i.e. during the depression and World War II, was one in which the courts were generally not sympathetic to patents. In fact in 1941, in Cuno Engineering v. Automatic Devices Corp. The US Supreme Court suggested that to be patentable an invention must "reveal the flash of creative genius not merely the skill of the calling".

In 1939 the two year grace period that had existed since 1839 with respect to some statutory bars was reduced to one year on the ground that "under present conditions two years appears unduly long and operates as a handicap to industry."

In 1940, the duration of the grace period relating to acts of prior use or prior publication by the inventor which were to be excused as novelty-destroying acts was reduced from two years to one.

Electric Storage Battery v. Shimadzu

In 1946, the law was amended to overrule the US Supreme Court's decision in Electric Storage Battery v. Shimadzu , which had applied the U. S. laws "first to invent" principle on a world wide basis. The statute confined the first to invent principle to situations where evidence of the invention could be found in the United States.

The basic structure of the present law was adopted in 1952. The two major changes made at that time were to include in the statute for the first time a requirement that to be patentable an invention had not only to be novel, thereby codifying a century of case law, and to include a definition of infringement, which had up till then been left to the courts. Other changes included a minor change in the definition of what constituted patentable subject matter by replacing the eighteenth century word "art" by "process"; an express statement that when an invention involved a combination of elements it was possible to define such elements in functional terms (i.e. as a "means for" doing something) ; a slackening of the rules and regulations relating to applications by joint inventors and where an inventor cannot be found or refuses to apply for a patent even though bound by contract to do so; imposed a maximum time limit of two years within which to request the reissue of a patent with broadened claims; abrogated the common law rule that a patent could not be partially valid and permitted actions to proceed on the basis of valid claims even if there were invalid claims in the same patent.

Since 1952, the law has been amended quite a few times, as is shown next, which also points out other events of significance in determining the present shape of the world patent system as it impinges on the United States. (See Footnote for more details on these dates)

1954: Provisions relating to plant patents were amended to make it clear that cultivated sports, mutants, hybrids and newly found seedlings were patentable.

1960 - The Imperimerie National at Paris introduced typesetting by computer.

1960 - Some 2,000 electronic computers were delivered to U.S. business offices, universities, laboratories, and other buyers. The figure more than double in the next 4 years and debate would rage as to whether computers wipe out jobs or create new ones.

Communication Satellites

1963 - The first communications satellite was NASA's Echo 1, an uninstrumented inflatable sphere that passively reflected radio signals back to earth and thus avoiding the curvature-of-the-earth limitation formerly placed on communications between ground-based facilities.. Later satellites, starting with NASA's Relay satellites and the American Telephone and Telegraph (AT&T) Company's Telstar satellites, carried with them electronic devices for receiving, amplifying, and rebroadcasting signals to earth. The U.S. launching (1963) of the first synchronous-orbit satellite (Syncom 1) paved the way for the formation of the International Telecommunications Satellite Organization, whose successive series of Intelsat geostationary satellites have steadily lowered the cost of transoceanic communications.

1964: Commissioner given the power to accept a declaration in lieu of an oath in "any document" and to give provisional acceptance to a defective document.

1965: Presumption of validity applied independently to each claim of a patent 35 USC 282

1966: US Supreme Court decision in Graham v. John Deere set out the proper test for deciding whether or not a claimed invention is obvious.

1968: The Patent Cooperation Treaty was signed.

1971: US Supreme Court decision in Blonder-Tongue v. University of Illinois held that once a patent had finally been held to be invalid after full and fair litigation, that finding could be used as a defense in subsequent litigation on that patent even if the parties differed.

1975 : Name of "The Patent Office" changed to "The Patent and Trademark Office".

Amendments to accommodate the Patent Cooperation Treaty.

Liberalised the law having regard to the writing of claims in multiply dependent form. 1978: European Patent Office opened.

Patent Cooperation Treaty came into effect.

1980: Requirement to pay maintenance fees to keep patent in force introduced. Special provisions made for inventions made with Federal assistance.

Provision made for third parties to cite prior art to USPTO.

Possibility of requesting re-examination created.

United States rebuffs attempts by developing countries to amend Paris Convention to permit exclusive compulsory licensing.

6. US Supreme Court upholds the patentability of a genetically modified bacterium quoting the Congressional report leading up to the 1952 Act that "anything made by man under the sun" should be patentable.

1982: Applications permitted to be filed without signature by the inventor as long as the inventor had authorized the application to be filed.

Law relating to correction of wrongly named inventors liberalized.

Court of Appeals for the Federal Circuit created.

Term of all design patents fixed at fourteen years from grant.

Arbitration of disputes relating to patent infringement or validity authorized

It became possible for United States applicants to request an international search under the PCT by the European Patent Office.

1984: Possibility of extending patent term to compensate for delay in securing marketing authority from FDA to sell new drugs for humans. (Waxman Hatch Amendments)

Protection from finding of obviousness over work of co-employees etc.

Clarification that to be a joint inventor the inventors did not have to work together or each be an inventor of subject matter of every claim.

Settlement of interferences by arbitration became permissible.

Definition of infringement amended to include exports of kits of parts that can be used to make a product which if made in the U. S. would be an infringement of a U. S. Patent.

Boards of Patent Appeals and Interferences consolidated into a single Board of Patent Appeals and Interferences.

Statutory Invention Registration scheme introduced.

United States succeeds in causing inclusion of intellectual property issues in Uruguay Round of GATT negotiations.

1987: United States implements Chapter II of PCT.

It became possible for United States' applicants to request an international preliminary examination under the PCT by the European Patent Office.

1988: Possibility of extending patent term to compensate for delay in securing marketing authority from FDA to sell new drugs for animals. Requirements for securing permission to file patent application abroad if on file in U. S. for less than six months relaxed to some extent. Definition of infringement amended to include importation into the United States of products made abroad by a process covered by a U.S. patent and to reverse the burden of proof in certain cases of alleged infringement of a process patent. Definition of infringement amended to include application to FDA for marketing approval of a patented drug to be effective before the expiration of the patent but to remove from patent infringement acts relating to collecting data for use in submissions to the FDA for marketing approval of a drug etc.

Patent Misuse Reform Act made it clear that patent was not unenforceable for misuse on the basis that patentee had refused to license the patent or on the basis of tying arrangements unless the patentee had market power in the relevant market. 1990 Extension of definition of patent infringement to acts in outer space on a "space object or component thereof under the jurisdiction or control of the United States".

1992 State governments made liable for acts of patent infringement. 1993 Extension of right to prove prior invention to acts carried out in NAFTA countries

1994: Uruguay Round of negotiations for revision of the General Agreement of Tariffs and Trade (GATT), concludes an agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which include enforceable minimum standards for patent protection.

Extension of right to prove prior invention to acts carried out in WTO countries. Introduced the possibility of filing provisional patent applications.

Subject to transitional provisions, the term of a patent is now twenty tears from its earliest filing date (instead of seventeen years from grant), subject to the possibility of extension to compensate for delays due to interferences or the need to appeal in order to secure the grant of the patent. Definition of infringing acts extended to include offers for sale and acts of importation. Reversal of burden of proof in certain cases where infringement of process patent is alleged.

1995: Protection of biotechnology processes from finding of obviousness if it is for the production of new and nonobvious product.

1996: Removal of remedies for infringement of patents for surgical processes.

1998: The Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial. holds that there is no prohibition in U.S. law on patents for business methods as long as they are new, useful and non-obvious.

1999: The 1992 amendment to make state governments liable for act of patent infringement is held to be an unconstitutional abridgement of the states' sovereign immunity in Florida Prepaid Post-secondary Education Expense Board v. College Savings Bank .

The Way Forward

As the world becomes smaller through Information Technology etc., and there is a bigger demand for faster and more powerful computers, there must be therefore faster and more powerful ideas and inventions. The computer program and software can be very difficult to protect. Software has two parts: The text and the behaviour. The text can be protected by the copyright law and the behaviour, if looked on as a machine, by the patenting system.

The Founders of Computers.

Konrad Zuse

Konrad Zuse wrote the first algorithmic programming language called 'Plankalkl' in 1946, which he used to program his computers.

John Atanasoff & Clifford Berry

Professor John Atanasoff and graduate student Clifford Berry built the world's first electronic-digital computer at Iowa State University between 1939 and 1942. The Atanasoff-Berry Computer represented several innovations in computing, including a binary system of arithmetic, parallel processing, regenerative memory, and a separation of memory and computing functions.

Presper Eckert and John Mauchly

Presper Eckert and John Mauchly were the first to patent a digital computing device, the ENIAC computer. A patent infringement case (Sperry Rand Vs. Honeywell, 1973) voided the ENIAC patent as a derivative of Atanasoff's invention. Atanasoff was quite generous in stating, "there is enough credit for everyone in the invention and development of the electronic computer." Eckert and Mauchly received most of the credit for inventing the first electronic-digital computer. Some historians now say that the Atanasoff-Berry computer was the first.

In late 1939, Atanasoff teamed up with Berry to build a prototype. They created the first computing machine to use electricity, vacuum tubes, binary numbers and capacitors. The capacitors were in a rotating drum that held the electrical charge for the memory. The brilliant and inventive Berry, with his background in electronics and mechanical construction skills, was the ideal partner for Atanasoff. The prototype won the team a grant of $850 to build a full-scale model. They spent the next two years further improving the Atanasoff-Berry Computer. The final product was the size of a desk, weighed 700 pounds, had over 300 vacuum tubes, and contained a mile of wire. It could calculate about one operation every 15 seconds, today a computer can calculate 150 billion operations in 15 seconds. Too large to go anywhere, it remained in the basement of the physics department.

Aiken and Hopper

Howard Aiken and Grace Hopper designed the MARK series of computers at Harvard University. The MARK series of computers began with the Mark I in 1944. If you can imagine a giant roomful of noisy, clicking metal parts, 55 feet long and 8 feet high. The 5-ton device contained almost 760,000 separate pieces. Used by the US Navy for gunnery and ballistic calculations, the Mark I was in operation until 1959.

John Mauchly and John Presper Eckert

In 1946, John Mauchly and John Presper Eckert developed the ENIAC I The U.S. military sponsored their research; they needed a calculating device for writing artillery-firing tables. The Ballistics Research Laboratory, or BRL, heard about John Mauchly's research at the University of Pennsylvania's Moore School of Electrical Engineering. Mauchly had previously created several calculating machines, some with small electric motors inside. He had begun designing in 1942, a better calculating machine based on the work of John Atanasoff that would use vacuum tubes to speed up calculations.

Dr. John Von Neumann

In 1948, Dr. John Von Neumann made several modifications to the ENIAC. The ENIAC had performed arithmetic and transfer operations concurrently, which caused programming difficulties. Von Neumann suggested that switches control code selection so pluggable cable connections could remain fixed. He added a converter code to enable serial operation.

Eckert and Mauchly

In 1946, Eckert and Mauchly started the Eckert-Mauchly Computer Corporation. In 1949, their company launched the BINAC (BINary Automatic) computer that used magnetic tape to store data.

Remington

In 1950, the Remington Rand Corporation bought the Eckert-Mauchly Computer Corporation and changed the name to the Univac Division of Remington Rand. Their research resulted in the UNIVAC (UNIVersal Automatic Computer), an important forerunner of today's computers.

In 1955, Remington Rand merged with the Sperry Corporation and formed Sperry-Rand. Eckert remained with the company as an executive and continued with the company as it later merged with the Burroughs Corporation to become Unisys

Eckert and Mauchly both received the IEEE Computer Society Pioneer Award in 1980. At 11:45 p.m., October 2, 1955, with the power finally shut off, the ENIAC retired.

Sir Frederick Williams and Tom Kilburn co

1946: Sir Frederick Williams and Tom Kilburn co-invented the Williams-Kilburn Tube or Williams Tube, a type of altered cathode-ray tube. Scientists conducted research on cathode-ray tubes serving as computer data storage during the early 1940s.

The Williams Tube provided the first large amount of random access memory (RAM), and it was a convenient method of data-storage. It did not require rewiring each time the data was changed, and programming the computer went much faster. It became the dominant form of computer memory until outdated by core memory in 1955.

Bardeen, Shockley and Brattain

Bardeen, Shockley and Brattain, scientists at the Bell Telephone Laboratories in Murray Hill, New Jersey, were researching the behaviour of crystals (germanium) as semi-conductors in an attempt to replace vacuum tubes as mechanical relays in telecommunications. The vacuum tube, used to amplify music and voice, made long-distance calling practical, but the tubes consumed power, created heat and burned out rapidly, requiring high maintenance.

The team's research was about to come to a fruitless end when a last attempt to try a purer substance as a contact point lead to the invention of the "point-contact" transistor amplifier. In 1956, the team received the Nobel Prize in Physics for the invention of the transistor.

Dr. J. Presper Eckert and Dr. John W. Mauchly

The Universal Automatic Computer or UNIVAC was a computer milestone achieved by Dr. J. Presper Eckert and Dr. John W. Mauchly, the team that invented the ENIAC computer.

Eckert and Mauchly, after leaving the academic environment of The Moore School of Engineering to start their own computer business, found their first client was the United States Census Bureau. The Bureau needed a new computer to deal with the exploding U.S. population (the beginning of the famous baby boom). In April 1946, a $300,000 deposit was given to Eckert and Mauchly for the research into a new computer called the UNIVAC.

In 1950, Eckert and Mauchly were bailed out of financial trouble by Remington Rand Inc. (manufacturers of electric razors), and the "Eckert-Mauchly Computer Corporation" became the "Univac Division of Remington Rand." Remington Rand's lawyers unsuccessfully tried to re-negotiate the government contract for additional money. Under threat of legal action, however, Remington Rand had no choice but to complete the UNIVAC at the original price.

On March 31, 1951, the Census Bureau accepted delivery of the first UNIVAC computer. The final cost of constructing the first UNIVAC was close to one million dollars. Forty-six UNIVAC computers were built for both government and business uses. Remington Rand became the first American manufacturers of a commercial computer system. Their first non-government contract was for General Electric's Appliance Park facility in Louisville, Kentucky, who used the UNIVAC computer for a payroll application.

IBM International Business Machines

The company incorporated in 1911, starting as a major producer of punch card tabulating machines. In the 1930s, IBM built a series of calculators, the 600s based on their card processing equipment. In 1944, IBM co-sponsored the Mark 1 computer together with Harvard University, the first machine to compute long calculations automatically.

The year 1953 saw the development of IBM's 701 EDPM, which, according to IBM, was the first commercially successful general-purpose computer. The 701's invention was part of the Korean War effort. Thomas Johnson Watson, Jr. wanted to contribute a "defense calculator" to aid in the United Nations' policing of Korea. One obstacle he had to overcome was in convincing his father, Thomas Johnson Watson, Sr. then Chief Executive Officer of IBM that computers would not harm IBM's card processing business. The 701s were incompatible with IBM's punched card processing equipment, a moneymaker for IBM. Only nineteen 701s were manufactured the machine could be rented for $15,000 per month.

In 1956, a significant upgrade to the 701 appeared. The IBM 704 was considered the world's first super-computer and the first machine to incorporate floating-point hardware. The 704 used magnetic core memory that was faster and more reliable than the magnetic drum storage found in the 701. Also part of the 700 series, the IBM 7090 was the first commercial transistorised computer. Built in 1960, the 7090 computer was the fastest computer in the world. IBM dominated the mainframe and minicomputer market for the next two decades with its 700 series.

After releasing the 700 series, IBM built the 650 EDPM, a computer compatible with its earlier 600 calculator series. The 650 used the same card processing peripherals as the earlier calculators, starting the trend for loyal customers to upgrade. The 650s were IBM's first mass-produced computers (universities were offered a 60% discount).

In 1981, IBM created its first personal home-use computer called the IBM PC, another milestone in computer history.

Intel

In 1968, Bob Noyce and Gordon Moore were two engineers working for the Fairchild Semiconductor Company who decided to quit and create their own company at a time when many Fairchild employees were leaving to create start-ups. People like Noyce and Moore were nicknamed the "Fairchildren".

The name "Moore Noyce" was already trademarked by a hotel chain, so the two founders decided upon the name "Intel" for their new company, a shortened version of "integrated electronics

Intel's first money making product was the 3101 Schottky bipolar 64-bit static random access memory (SRAM) chip. In late 1969, a potential client from Japan called Busicom, asked to have twelve custom chips designed. Separate chips for keyboard scanning, display control, printer control and other functions for a Busicom-manufactured calculator.

Floppy Disk

In 1971, IBM introduced the first "memory disk", as it was called then, or the "floppy disk" as it is known today. The "floppy" was invented by IBM engineers led by Alan Shugart The first floppy was an 8" plastic disk coated with magnetic iron oxide; data was written to and read from the disk's surface. The nickname "floppy" came from it's flexibility. The floppy disk was considered a revolutionary device at the time for it's portability which provided a new and easy physical means of transporting data from computer to computer.

In 1976, the 5 1/4" flexible disk drive and diskette was developed by Alan Shugart for Wang Laboratories. Wang had wanted a smaller floppy disk and drive to use with their desktop computers. By 1978, more than 10 manufacturers were producing 5 1/4" floppy drives.

In 1981, Sony introduced the first 3 1/2" floppy drives and diskettes. This is the floppy familiar to today's computer user.

E-mail

To most of us, electronic mail is a relatively recent phenomenon. But the first e-mail was sent 30 years ago, after a programmer came up with the "@" symbol format for e-mail addresses, writes BBC News Online's technology correspondent Mark Ward.

Can you remember the first e-mail message you ever sent? Unless you are a very recent convert to the internet, then probably not.

If the subject and content of that first electronic epistle escapes you, don't worry, you are in good company.

Ray Tomlinson can't recall his first e-mail either but, with due respect to yourself, it was certainly more significant.

Mr Tomlinson has been called the father of e-mail because, back in 1971, he invented the software that allowed messages to be sent between computers.

He didn't invent e-mail itself. That had been around since 1965 when Fernando Corbato and colleagues at the Massachusetts Institute of Technology developed a program to let the individual users of the institution's Compatible Timesharing System (CTSS) swap messages.

But that program only let people using one machine communicate with each other.

Message log

Ray Tomlinson made it possible to swap messages between machines in different locations; between universities, across continents, and oceans.

At the time Mr Tomlinson was working for Boston-based Bolt, Beranek and Newman, which was helping to develop Arpanet, the forerunner of the modern internet.

e had been working on a program called SNDMSG, which, like that developed for CTSS, let all the users of one machine leave messages for each other. At the same time, he was refining a method of transferring files from one machine to another across a network. Putting the two together Mr Tomlinson came up with the first e-mail program.

Just as important as the 200 lines of code that made up the e-mail software was Mr Tomlinson's elegant way of organising the addresses of people and the computers that held their e-mail account.

The Model 33 Teletype keyboard connected to the computer Mr Tomlinson was using only had about 12 punctuation characters. Out of this limited pool he plumped for the @ symbol which has since become an icon for the internet age - as well as launching a thousand naff company names.

The advantages of using this symbol are manifold. For a start, it makes mail addresses much easier to remember than any scheme based on large strings of numbers. Its separation of the person getting the mail from the machine they are using also helps organise the addressing scheme of the whole internet.

First address

Mr Tomlinson's e-mail address was tomlinson@bbn-tenexa. BBN was his employer, and Tenex the operating system used by machines at the company. The more familiar .com, .co.uk and so on came much later.

But even though a lot of details of those first mail systems are known, the text of the first message has been lost. Mr Tomlinson sent this historic message to himself from one machine to another sometime in October 1971. He said the text of this first message was "completely forgettable" but suspects it said something like 'qwertyuiop' or 'testing 1-2-3'.

As a harbinger of a new epoch in communications this does not compare well with the first telegram which read: "What hath God wrought!"; or even with the "Mr Watson, come here; I want you" uttered by Alexander Graham Bell over the first phone line.

Despite this, e-mail soon proved its worth and it swiftly became the most popular application on the fledgling net which, at that time, linked together computers at just 15 sites. Today, there are tens of millions of computers and e-mail is still the most popular application.

Experts think it will keep on growing. US Market research firm IDC predicts the number of e-mail addresses to grow from about 505 million in 2002 to 1.2 billion by 2005.

Change for the worse?

The internet, with its multimedia websites and sophisticated electronic commerce, is very different today to its incarnation 30 years ago.

Not all these changes are for the better. Anyone with an e-mail account has probably received unsolicited commercial e-mail, or spam, offering them pornography, get-rich-quick schemes or dubious herbal remedies.

But the popularity of plain text e-mail messages, which make up the bulk of those sent, show why the net has been such a huge success. They are convenient and leave a record that they have been sent; and now many of us can't live without them. It clearly answers a primal need to communicate, to keep in touch and socialise.

And that is one message coming through loud and clear.

Apple

On April Fool's Day, 1976, Steve Wozniak and Steve Jobs released the Apple I computer and started Apple Computers. The Apple I was the first single circuit board computer. It came with a video interface, 8k of RAM and a keyboard.

Dan Bricklin and Bob Frankston

Dan Bricklin and Bob Frankston invented VisiCalc. While a masters student in business administration at Harvard Business School, Dan Bricklin joined up with Bob Frankston to help him write the programming for his new electronic spreadsheet. The two started their own company, Software Arts Inc., to develop their product. By the end of 1979, an Apple II version of VisiCalc was ready, and the team started writing versions for the Tandy TRS-80, Commodore PET and the Atari 800. By October, VisiCalc was a fast seller on the shelves of computer stores at US $100.

In November of 1981, Bricklin received the Grace Murray Hopper Award from the Association for Computing Machinery in honor of his innovation. VisiCalc was soon sold to Lotus Development Corporation, where it developed into the Lotus 1-2-3 spreadsheet for the PC by 1983. Bricklin never received a patent for VisiCalc. It was not until after 1981 that software programs were made eligible for patents by the Supreme Court.

In 1980, IBM first approached Bill Gates and Microsoft, to discuss the state of home computers and Microsoft products. Gates gave IBM a few ideas on what would make a great home computer, among them to have Basic written into the ROM chip. Microsoft had already produced several versions of Basic for different computer system beginning with the Altair, so Gates was more than happy to write a version for IBM.

On August 12, 1981, IBM introduced its' new revolution in a box, the "Personal Computer" complete with a brand new operating system from Microsoft and a 16-bit computer operating system called MS-DOS 1.0.

In 1985, the "MacIntosh" computer line received a big sales boost with the introduction of the LaserWriter printer and Aldus PageMaker, home desktop publishing was now possible. But 1985 was also the year when the original founders of Apple left the company

Microsoft Windows

On November 10, 1983, at the Plaza Hotel in New York City, Microsoft Corporation formally announced Microsoft Windows, a next-generation operating system that would provide a graphical user interface (GUI) and multitasking environment for IBM computers. Microsoft promised that the new program would be on the shelf by April 1984. It might have been released under the original name of Interface Manager if Microsoft's marketing whiz, Rowland Hanson, had not convinced Microsoft founder Bill Gates that Windows was the better name.

On December 9, 1987, Microsoft released a much-improved Windows 2.0. May 22, 1990, saw the released of Windows 3.0. On April 6, 1992, Windows 3.1 was released. August 24, 1995, Windows 95, June 25, 1998, Microsoft released Windows 98 and Windows 2000 is based on Microsoft's NT technology, and Microsoft offers automatic software updates over the Internet.

The Way Farward.

We have seen the history of copyright, Patents and the birth of the computer. As time has moved on we have seen a more rapid speed in development of these three subjects. They have grown toward each other over the years until now we have to address the three as on subject.

Copyright: The Copyright System aim has been to give certain legal rights to the owner of a work. If the work is registered before an infringement occurs, the copyright owner has a good chance of being awarded his legal fees in a successful case, among other benefits

Patenting: The Patenting System aim has been to protect new inventions so to encourage the development of industries. Sometimes it is very difficult to decide how to patent software. This is why it can be costly and timely in the decision.

Some people want to tell you how bad things are when it comes to copyright law for software and computer programs, but in my opinion, its doing not a bad job considering all the difficulties. Yes it could have better protection, but this is a relatively new industry and will have problems. Questions that occasionally come up are e.g. Whether copyright protects program user interface, whether algorithms are patentable, etc.

Some Patenting Issues

First, much of the software and computer program patenting is being done by the end-users of the software e.g. Motor industries, copiers, medical equipment, industrial control, etc. as opposed to software and hardware developers.

An issue that I feel could also be look at is the trend that US companies tend to file the software technology patents, while Japanese companies tend to file end-user application patents.

IBM is the number one recipient of software patents (In the passed they have had 1/8 of all software patents but now they are slowing down to 1/9). Image processing is still the leading software application being patented due in large part to medical imaging and the Japanese copier companies.

Second, some areas of software patenting are more "hot" than others. The following programs are in order of popularity when considered over a five-year period from 1989 to 1994, while the numbers are only for 1994. For example, network/communications patents in 1994 are more active than operating systems, while traditionally it has been less active.

In this light, networking, medical, motor industries, office automation and music are "hot", while AI, word processing, and database are "cold". Examining such patent trends is a good way to discover new software niches to invest money in (though if you are going to do so, it might be an idea to learn Japanese).

Third, at least 25% of these patents should have some or all of their claims disallowed based on prior art grounds. Admittedly having the only large software prior art database, Aharonian can provide the supporting evidence for proving such under MPEP rules, and hopefully someday the PTO examiners will be given access to similar databases and search systems. But for the time being, Aharonian suggests that a lot of the software patents that are being issued shouldn't be, patents that will lead to lots of expensive and costly nuisance infringement lawsuits.

Copyright protection in cyberspace, that today includes encryption technology, evolves into what Gibson calls ICE, i.e. intrusion counter-measures electronic. This, he projects, will include black ice using electronic feedback that may prove fatal to hackers. Protection of intellectual property in Gibsons future also includes cerebral bombs implanted in the brains of corporate executives and timed to go off if an executive defects to another corporation.

Gibsons world of the near future is one in which copyright, copyright protection and intellectual property rights in general runs wild. The corporate sector uses both increasingly restrictive laws as well as technological means to tightly control access to the expression of ideas fixed in material form.

Is Copyright Dead on the Net?

In todays WWW age, what can "copyright" possibly stand for when millions of people can download the information they find on the Internet to their home PC? So far, the idea of open access to these materials hasn't slowed down the onslaught of new information flowing into the Net. But will information suppliers rebel against the status quo at some point? If they do clamp down, will the copyright laws be any help?

That depends on whom you ask. Several widely divergent schools of thought have developed among the prognosticators of network copyright.

So if we take the approach of , No Copyright on Network Materials, Ever, and claim the Net is a shared public resource, and its riches of information should be freely available to all then what about the "legal rule" that copyrighted works are not available to everyone unless expressly placed in the public domain by the owner? Simply uploading a text onto the Net can't be a dedication to the public domain, unless we are ready to discourage authors of books and articles from placing their works on the Internet.

What if copyrighted materials are placed on the Net without the owner's permission? Should the owner be able to sue for copyright infringement? Are copyrights somehow stripped off on the way into the Internet, leaving the materials bare of all legal protection?

That Old Saying, It's Okay if its a Quote.

There is an old wives tale in publishing that you can reproduce texts or statements as quotes without permission from the author as long as you name the creator of the material. This is not true. You must have the author's permission, unless an exception like the "fair use" exception applies. Yet in the online world, thousands of people join in public discussions with a virtual leg on each side of the globe, and journalists, to name but one profession, are mining this rich new vein of material. Some justify their re-publication without consent by pointing out that they always attribute quoted materials to their authors. Will the look and feel of the Internet which some see as a collection of uncopyrightable discussions somehow lead to a new "legal rule" that permits rampant appropriation of others' online writings under the guise of quoting?

In the past, fair use was a very narrow exception to copyright law that applied almost exclusively to education and critical commentary. It is Roses opinion that it has become an excuse for people who are too lazy or simply too stingy to go out and buy a copyright license. Will fair use on the Internet expand in the direction suggested by computer artists and BBS sysops, causing this exception to copyright protection to swallow up the rule?

The producer of the football multimedia production for example, may need to modify the size, colour, and shape of the original copyrighted works incorporated in the production while still trying to capture the essence of what the original author work was trying to convey. This modification of a copyrighted work generally results in the creation of a derivative work. Unless the multimedia producer obtains a license to utilize the derivative work in the production, the multimedia producer will have to raise the defence of fair use to avoid copyright infringement. A possible solution to this problem is to allow the multimedia producer to modify the work and to give the author final approval of the revisions.

Withholding Tight Copyright Control.

Many software manufacturers are quite rightly, concerned that their programs are being distributed on the Internet without their permission. Whenever they find an unauthorised upload, they send out threatening letters through the online communities. The United Sates Congress recently helped out the software industry in this effort by adding the warning of a prison sentence to what was previously a purely commercial infringement. It remains to be seen whether the industry's scare tactics will put a permanent dent in the Net's freewheeling treatment of software and other information.

Will any of these approaches to copyright prevail? Maybe not. It is more likely that all of these approaches will find their own niches in the vast, amorphous community that is the Internet.

United States copyright law for software came into effect in 1978. In 1980, certain changes were made to define copyright protection for software and computer programs. The copyright law is a federal law and completely preempts any state copyright laws, which may have existed prior to 1976.

Copyright protects "original works of authorship against unauthorised copying. Perhaps the most basic statement about copyrights is that the copyright laws protect expression but not ideas. Although this might sound like a simple statement, substantial litigation, including many cases in the computer software area, involve the question of what is an idea and what is an expression. For example, there has been a lot of press coverage concerning "look and feel" protection for computer programs under the copyright laws. The fundamental issues in these "look and feel" cases is whether the protectable expression in a computer program extends beyond the literal program listing to the "structure, sequence, and organisation" of the program and, if so, where is the line drawn between what is considered expression and what is considered idea. Luckily, issues of copyright duration are not as controversial. Copyright protection comes into being subsists when an original work of authorship is created. Therefore, the mere act of authoring creates the copyright for that work.

Copyright registration is not needed to get protection. A copyright registration must be obtained before one can sue for copyright infringement, however, and certain monetary recoveries may not be available in infringement precedes registration. The United States Copyright Office issues copyright registrations.

For works created after January 1, 1978, copyright protection exists either for the life of the author plus 50 years after his or her death, or for 75 years from the publication for anonymous works or works made for hire e.g., works created by an employee in the course of their employment.

Yoches suggests that maintaining copyright protection is quite easy. Until March 1, 1989, all you needed to do was place a copyright notice on any publicly distributed copies of the work. Copyright notice includes the word "copyright," "Copr.," or a copyright symbol, plus the date that the work was created and an identification of the owner of the copyright. Copyright notice is not needed for copies that are not publicly distributed, but it was generally a good idea to include notice. After March 1, notice were no longer to be required but was advised.

Patents, like copyrights, arise under United States federal law and have their origin in the United States Constitution. Otherwise, patents and copyrights are different. They are obtained in different ways, provide different types of protection, and have different lifetimes.

Patents may protect inventions for processes, something that performs an act, machines, manufacturers, or compositions of matter. Most computer software-related inventions are either processes, such as computer-driven processes, or machines, such as certain programmed computers. After a long battle, the US Supreme Court had finally settled the issue of the patentability of software-related inventions and has held that those inventions are judged for patentability in the same way as non-software related inventions.

In the United States as in Europe, applications for patent protection are subject to strict examination requirements. The U.S. Patent and Trademark Office and the European Patent office have responsibility for examining applications for patents.

Once obtained, patent protection is easy to maintain, requiring only the payment of certain maintenance fees. Patent protection can last for up to 17 years after the grant of the patent if all the maintenance fees are paid. After that time, the subject matter of the patented invention is in the public domain.

Patents provide relatively strong protection because, unlike copyrights or trade secrets, patents may be infringed even if there is no copying. Therefore, a patent can be enforced against others who independently develop their own computer programs if those programs are used in a way that infringes the patent.

The scope of patent protection is also generally greater than that of copyright protection. This is because patent protection is not limited to one machine or process, but instead covers a class of machines or processes defined by the scope of the claims of the patent.

A United States patent grants its owner the exclusive right to make, use and sell the invention throughout the United States. Under law, certain types of manufacturing outside of the United States may also be an infringement.

It is also an infringement to contribute to or actively induce infringement by others.

Manufacture, use or sale of an invention in the United States without the patent owner's authorisation constitutes patent infringement and may be enjoined. In addition, the infringer may be subject to actual damages and, under certain circumstances, a form of punitive damages.

The Green Paper:

In 1993, the White House formed the National Information Infrastructure (NII) Task Force, and gave it the job of finding out what needed to be regulated on the networks. One of the first reports back was from its Working Group on Intellectual Property, a voluminous document published in 1994 and known simply as the The Green Paper.

Despite the density of the Green Paper, the Working Groups main finding was that very little needed to be changed to apply copyright law to computer networks, either then or in the foreseeable future.

One of the few changes they recommended was to make it clear that the copyright owners permission would be required every time a copyright file was sent from computer to computer on the Internet. I thought that was just common sense, but copyright has some traditions to wrestle with.

Under conventional copyright law, there are limits on how far a copyright owner can control distribution of physical copies like books, records and tapes. The owner has the right to control initial distribution of a book, but after that, the buyer can without obstruction, resell their copies to whoever they want and at any price. The right of the buyer to resell his copy outside the copyright owners control is known as the first sale doctrine.

The Working Group saw that a technical problem could arise if you applied the first sale doctrine literally to file transfers in cyberspace, If everyone who downloaded a file copy to their own computer is comparable to the buyer of a book, then the first sale doctrine could give them the right to freely redistribute those copies to everyone else on the Net, at any price or for free.

This means every new online work could spread like wild fire through the Internet, and the copyright owner would lose all ability to charge money for it. To prevent this slackening of copyright, the Working Group sanctioned that for file transfers over the net, a first sale that would cut off the copyright owners control of online distribution never occurs.

For many, this is a minor but significant adjustment that would help copyright function online in much the same way it had in the physical world. Others, however, established this move the most radical change in copyright law in the last century. They argued that existing copyright law reflected a carefully calibrated balance between the right of creators to control their works, and the rights of the public to use and distribute those works. For example, writers of popular books must live with the fact that, thanks to the first sale doctrine, an after market of used books will eventually arise to compete directly with new editions of their works.

This puts a limit on the profits a copyright owner can wring out of his work, while the public gets the continuing ability to recalculate existing copies. If the first sale doctrine was eliminated from online transfers as the Working Group recommended, then there will be no possibility of an after market in used digital copies on the net, and limit on the copyright owners control of the work. The public will no longer be able to recalculate copies at prices set by the marketplace; every transfer would be made under conditions and prices set by the copyright owner.

The NII Task Force Working Group took the approach that while it was true that every file transfer would be within the copyright owners legal control if we eliminated the first sale doctrine, there were other factors that would keep files moving on the Net.

One was the implied license to redistribute files; another was the continuing use and development of shareware and other file distribution schemes that depended on widespread distribution, rather than strict control, to achieve the copyrights goals.

Another development that would make this whole debate irrelevant was the rise of inscription-based metering software, copies of works contained in metered files could be distributed endlessly, however no copy could be accessed by a user without paying the copyright owner or its agent for the privilege, on a time or usage metered basis. In any case, there might be a continuing debate on this subject over the next few years.

Is There A New Problem:

Although computer programs and software are so different and so new to traditional works, about a hundred years ago, it was wondered if agricultural inventions could be protected, on the grounds that agriculture was not an industry. Twenty years ago, the same happened with pharmaceutical patents. Today the biotechnology industry finds itself in the same situation. As time goes by, the birth of each new industry has triggered off new debates over patentability / copyrightability.

It is only the next step on the ladder of time that a development as radical as the Internet and Computer software should spark its own patenting wrangle. In particular, a cluster of patents issued by the United States Patent and Trademark Office covering e-commerce methods and techniques has set off a new storm.

A computer program is protected by copyright because it constitutes a literary work under the Copyright Designs and Patents Act 1988. From a purchaser's point of view, unless there is some agreement with the owner of the intellectual property in the program, it is almost impossible to use software without infringing the copyright. This is because, in order to load and run a program, the program has to be copied from its permanent storage medium, into the computer.

Legitimate use of software therefore depends on having the permission of the owner of the copyright. The shrink-wrap licence purports to preserve the owner's rights whilst enabling the software to be used.

Until recently, the legal significance of such licences was considered precarious at best. Stone, 1996 et al, although the practice was widespread among software companies. The reason for doubting the validity or enforceability is that the supply generally occurs before the purchaser has the opportunity to consider the terms of the licence.

Depending on the type of licence, it may or may not be possible to view the licence terms before the box is opened.

Software development takes up lots of investment of hard labour and ready cash. To realise maximum returns on that investment it is necessary for software developers to effectively protect the fruits of their labour by recording the terms under which that software will be used in a written contract or the software licence.

The law relating to the use and protection of software is complicated and has evolved substantially during the past decade. Software licences need to reflect both legal and industry developments, e.g., "Year 2000" compliance and "Euro" compliance.

From a developer's point of view the software licence must be subjected to legal constraints, maximise protection of software and minimise potential exposure.

EC Directive On Computer Programs

It could be said that the provisions of the EC Directive On Computer Programs (implemented in the UK by the Copyright (Computer Programs) Regulations 1992 confers a use right on a lawful acquirer of software. This directive is definitely a step in the right direction but may not provide a satisfactory legal basis for the supplier/customer relationship.

Article 85 of the Treaty of Rome

Where a licensee can demonstrate an effect on trade between EU Member States, it is arguable that attempts by a software developer to restrict the licensee from porting software to different hardware or moving the software to another location may be in contravention of Article 85 of the Treaty of Rome and thereby ineffective. While this issue may arise in only a few instances, developers should nonetheless be aware of it.

Licences

In the early days of computer games, when they came in the form of Audio Cassettes, the wrapper had what was known as shrink-wrap licences. The licence was printed on the wrapper and it stated that by opening the wrapper, you were agreeing to the terms and conditions of the licence. The term Shrink-wrap has stuck. Although it is no longer printed on the plastic packaging, it refers to a licence that is non negotiable and by opening the packet you have agreed to the terms and the software is now yours.

Shrink-wrap types.

There are different types of shrink-wrap licence. A 'box-top' licence is visible beneath the wrapping on the box. An 'envelope licence' is printed on the outside of a sealed envelope containing the licence. A 'referral licence' has a sticker over the disk or CD-ROM box that states, 'Do not open this before reading the licence attached.' The vast majority of shrink-wrap licences are not available for inspection prior to purchase.

Vault Corp. v. Quaid Software Ltd

One of the first reported cases to address shrink-wrap licenses was Vault Corp. v. Quaid Software Ltd, which held unenforceable a Louisiana statute that would have authorized shrink-wrap licenses.

In Vault, the defendant developed and sold a program that could copy computer diskettes encoded with a proprietary copy protection program called "PROLOK." In order to develop the program to defeat the copy-protection system, the defendant purchased PROLOK and reverse engineered the copy-protection scheme. The plaintiff, maker of the PROLOK program, claimed that the defendant had breached the shrink-wrapped license agreement, which prohibited decompilation or disassembly of PROLOK.

Louisiana law expressly permitted the inclusion in a shrink-wrap license agreement of terms prohibiting reverse engineering, decompilation and disassembly.

The district court, however, concluded that the shrink-wrap license agreement was an unenforceable contract of adhesion, and that Louisiana law authorizing such licenses was pre-empted by the federal Copyright Act. It did not. The district court's conclusion was that the prohibition against decompilation or disassembly in the license agreement was unenforceable.

So What is Software and Computer Programs:

We come across this problem again and again with software. Is software a product or a service? The courts have not been consistent in determining whether software is a product or a service. Although the trend appears to be leading to a doctrine that if a contract for software (which is generally in the form of a license) results in leaving with the licensee installed software, however unique or tailored to the requirements of the licensee, it will be considered a transaction involving a product. Some courts have ruled, however, that where the primary purpose of the contract is to receive the skill and talents of a programmer or developer to meet the licensee's specific needs, the contract will be deemed one for services.

Software does not only have text but it also does things, software behaves. Text and behaviour are two entirely different things. The text part is protected by the current copyright law but the behaviour is not. This part of the program is usually left to the protection of the expensive, and timely process of the patent system. The problems are that behaviour and other industrial elements of a program are often expensive to develop but cheap to copy. Great for the copier but not so good for the original owner. The software that is available now gives the user almost unlimited ability to make, copy or sabotage almost anything.

Two Examples of the problem:

i. Lotus-v-Borland 1995: The Lotus 1-2-3 was a spreadsheet program with accounting functions. Users controlled the program by using menu commands, such as "Copy," "Print," and "Quit." The user chooses commands either by highlighting them or by typing their first letter. Altogether Lotus 1-2-3 had 469 commands arranged into more than 50 menus and sub-menus.

Lotus 1-2-3, like many computer programs, allowed the user to write macros. By writing a macro, a user could appoint a series of command choices with a single macro keystroke. Then, to complete the series of commands in multiple parts of the spreadsheet, rather than typing the whole series each time, the user only needed to type the single pre-programmed macro keystroke, causing the program to perform the designated series of commands automatically. Thus, Lotus 1-2-3 macros shortened the time needed to set up and operate the program.

Borland released its Quattro program in 1987, after their engineers had worked on its development for nearly three years. Their objective was to develop a spreadsheet program far superior to existing programs, including Lotus 1-2-3. In Borland's words, "from the time of its initial release, Quattro included enormous innovations over competing spreadsheet products."

The courts had a hard time with this case and it even went to the court of appeal. The differences of opinion were vast. The two programs were very similar in many ways, but the big argument was over the user interface. More of this case can be seen on-line but because the interfaces could be changed to look like each other there were big problems.

Playboy

ii. Pictures are no longer just pictures; they are also raw source materials for new pictures. Using modern graphics software tools, anyone with a computer can scan in magazine photos, cut out desired pieces, then filter, distort and combine them into new images undreamed of by the original artist. Drawing a moustache on the Mona Liza was yesterdays act of aesthetic daring: today, it is cutting out her famous smile and seamlessly pasting it on the mug of Sonic the Hedgehog.

Playboy lose over an average of 500,000 a year from the scanning of their works of art magazines, and with the online magazine they could lose a lot mare. Since 1994 they have been aggressively approaching smaller online systems with files infringing its picture, and made them clear off the infringements. However, they cant go round to every teen schoolboys home and take away his computer.

What Can Be Done:

So how to get a sui generis approach to the legal protection of a computer program. This has generally been refused by the European Union, and the United States to name but a few, as they decided to use the present copyright law to protect computer programs and software.

The US amended its copyright law in 1980 to cover the protection of this law to computer programs. (Act of Dec. 12, 1980, Pub. L. No 96-517, 94 Stat, 3015). This was elevated in 1994 to a norm of international trade when the Uruguay Round of revisions to the General Agreement on Tariffs and Trade included a provision to provide copyright protection to computer programs.

The Office of Technology Assessment want to see a suitable balance in policy objectives through a sui generis approach to software protection that could be achieved through using existing features and a change to specifically protect software.

Dont throw out everything build on existing legal foundations. Some of the law is good for software; so dont throw out the baby with the bath water. It has provided a clear and capable means of deterring wholesale copying of source and object code and of expressive text, pictures, and audiovisual material generated when program instructions are concluded.

As I have already said computer programs and software are like machines. Traditional literary works like books are text, they dont behave, programs like machines do. They have dual characteristics.

Who Would Decide:

Making copyright law for computing industries could be done by having a specialised governing body of programmers, lawyers and business/marketing specialists. Bringing together the best of an independent authority to all aspects of this new and complicated industry. You may think that this would be too costly but if the law was more copy proof, then there would be more creators of the original work and less copying to take away the profits.

Instead of unfair competition, there would be healthy competition, which would improve product technology, push up production, the consumer would have a bigger and better choice in software products and so demand better again. I really do believe that novelty would grow and flourish within the market place. Competition is healthy for everyone.

What Would They Do:

A marketing oriented legal governing body would create incentives for the creator and those who want to use the creation to reach an agreement rather than to infringe. The licensing amongst the software developers is already quite common. Developers as a matter of course make arrangements with royalty provisions when they want to package another companys products along with theirs or to bring together applied knowledge from another companys software products into theirs. The governing body could more directly support this routine by developing standard licensing arrangements that market applicants would be free to contract around.

The governing body would be multi-faceted to identify among different kinds of second comers. This way they could tell if the second comers would have to pay the original creator fees or if they should be blocked from use for a decided reasonable time.

In market economies, competition is the broad order to which patent and copyright are exceptions. That is, unless patent or copyright law protects an innovation embodied in a publicly distributed product competitive imitation of it is not only lawful, but also welcome from the point of view of consumer welfare. The buyer benefits from competitive clone because it results in the production of more goods at lower prices as the more efficient producer enters the market.

There could be an automatic blockage of cloning. A more likely approach would be to protect program behaviour and other industrial design conditions of programs against cloning for a period of time sufficient to avoid market failure. Protection against cloning might begin, by act of law, from the first public marketing of the program embodying it. If this was done properly then this creator would have time to get the profits up before the competition came in with something NEW!

The Development cycle for software is roughly about one or two years just now. That is basically the time spent in the creation, and testing of a completely new product. The market rate is an empirical phenomenon, dependent on a huge range of issues, including, how long it takes to develop and debug a program and how soon consumers will buy and upgrade after purchasing the original program.

The rate can change depending on the state of new methods in the market place, the pace of that new method, and the relative situation of the market cycle. The market rate should also be considered in setting a suitable time for protection of program know-how.

The governing body would allow members of the relevant technical community operating within public interest guidelines to adjust the legal regime so that it is attuned to the rate of development in the market. This ability to bend can help turn away cycles of overheated and chilled innovation.

No governing body could solve all the problems that the industry may have but if they could concentrate on a practical solution to the most serious problems within the software industry and avoid getting distracted by the difficult questions in borderline cases.

A registration system for creative compilations of applied know-how embodied in software would help the development of a niche of state of the art software that would be of support in the development of software engineering, as well as in spirit provide an exchange through which low-cost transactions about use of software innovations could happen.

This registration system could also provide incentives for software developers to make known high level descriptions of innovative algorithms and other internal design elements of software that today are kept secret. Registration would provide a way for creators to get compensation for disclosed creations without undergoing the lengthy, expensive, and awkward process of patenting.

The main change would be to suppose a legal framework that would be flexible as the technology and markets for software develop.

The governing body could dodge wasteful reduplications of time and effort. Tangible societal expenses are incurred when program know-how is kept as a trade secret. Some of these rise from the cost of maintaining secrecy, others determine from the expenditures directed at reverse engineering or engaging in other labours to double or independently recreate the know-how.

One implement that allows these costs to be spread is licensing. To the extent that software products bear their know-how on the face of it, there is a problem. No one wants to pay for what they can get for free by looking at the merchandise as it is sold in the marketplace. For that reason, current legal regimes do not grant an environment for software-technology licensing agreements that consent to basic research and development costs to be spread.

These market applicants could share research and development costs in a marketing and rivalry complimentary way.

It may not be suitable for every applicant, in the market to make tangible investments in research and development work. However it may be both suitable and market safeguarding to demand contributions to the original research and development companies that want to use the fruits of others intellectual labour to make products that embody follow-on incrimination.

There is one way to accomplish this goal. Put the companies not involved in substantial research and development of their own to the business choice of either contributing to the cost of any research and development results they want to join in, or refraining from appropriating those results for a market saving blocking period. An appropriate period would be short enough that entrepreneurs feel they are faced with a plausible decision about whether or not to license the creation or wait for its coming out into the public marketplace.

The governing body should, as much as is possible, minimize the cost of getting their protection. To use the term Self-executing (J.H. Reichman. Et Al 1994) to describe the governing body, as this is an ideal expression to describe how they would provide protection with the minimum amount of bureaucracy, time, and overhead expense.

The more self-executing a regime is, the more market friendly it is likely to be. One of the ways to achieve both market protection and self-execution is to arrange some scale of lead-time protection automatically. Any formal requirements should be tailored to what is reasonable in market terms. This is particularly important in the rapidly developing technology fields such as software.

The governing body could lower the barriers to market entry. In healing market failure attributable to the fast appropriability of know-how in software, care must be taken not to bring about another kind of market failure by artificially raising barriers to entry. Making changes in the software market will, in general, be updated by widening opportunities to take part in it.

Professor Reichmans article Legal Hybrids states that a market-orientated framework for protecting program innovations should be built around a number of abstract elements:

1. Treat industrial compilations of applied know-how as the objects of protection.

2. Provide artificial lead time to overcome market failure.

3. Develop a menu of user liabilities that sensibly allocate the costs of research and development among innovators and borrowers that constitute the relevant technical community.

4. Allow registration with some disclosure.

5. Supply pro-competitive standard ground rules.

6. Develop legal and organizational means to enable collective action to enforce and adjust the liability framework.

Professor Riechman looks on these elements as useful insights in a more general approach to building a legal regime for dealing with all the appropriability of unpatentable and uncopyrightable know-how, regardless of the medium in which such know-how is embodied.

In an ideal world, the governing body could safeguard each software creation against commercial clones, just long enough to enable its creator to enjoy the same lead time as other creators who presented equal importance to the market place. The essential amount of artificial lead time would depend on the amount of natural lead time already available, given the well being or difficulty of reverse engineering. If such individualized tailoring could be possible, each creator could figure on the chance to earn precisely the return essential to justify his investment. In spite of the theoretical charm of such an approach, it can be regarded that it is too unpredictable to be practical.

Lead times would have to depend upon the product and its function. Each new product would have to be calculated, by using primary and secondary data, and research to find how long the life cycle of the particular product would be. E.g. educational software has a longer life cycle than games and leisure software products. This must always be taken into consideration when times are being issued.

Legislation constructors have at least three near term options as to legal protection to computer programs creations.

i. Do nothing and let the cycles of under and over protection from present legal regimes play themselves out. These cycles could be damaging for the software industry and also to consumers, but the industry may well be strong enough to withstand the laws inadequacies.

ii. To make the minimal amount of changes in the current law to address the most urgent under protection problem facing the software developers, the insufficiency of protection against the cloning of the program behaviour and other industrial design elements of software.

iii. To give earnest thought to setting up a registration based modus operandi that would balance anti-cloning protection to ensure that creators would take in fees from those who wish to reimplement their creations.

Conclusion:

This third answer is the one, which I would certainly recommend. Even though anti-cloning legislation would take care of the industrys most urgent protection needs, it is only a limited answer.

A broader answer would include adoption of a registration system for creative compilation of applied know-how embodied in software. This system would make easy development of a virtual storehouse of state-of-the-art software that would be of help in the natural process of software production, as well as in essence provide an exchange through which low cost dealings about the reuse of software creation could come to pass.

A registration system of this kind might also grant incentives for software developers to disclose high level descriptions of creative algorithms and other internal design setting of software that today are kept as a secret. Registration would provide a way for creators to get payment for disclosed creations without undergoing the drawn-out, costly awkward process of patenting.

One of the challenges is to visualize a legal framework that would be flexible as the technology and markets for software grow and change.

The existing copyright law has fundamentally focused on only one of the characteristics of programs and software, their text, that is, the statements and instructions that can be used in a computer to bring about certain results, the behaviour. Almost all nations have recognized the textual characters of program codes in determining to use copyright law to protect it. Copyright is proving to be a potent and uncontroversial means for protecting program codes from literal cloning.

The present regimes have, nevertheless, found it hard to identify and deal suitably with other the characteristics of computer programs. In this report I hope I have shown that the real issues in disagreement have sometimes been camouflaged by the issues that copyright principle seems to claim, I would say that the real argument in organization of words, icons, for example, circumstances of user interface have conventional importance in copyright law, but about the lawfulness of developing a computer program that copies another programs behaviour.

I now understand and I hope I have illustrated, that the enticement to use copyright law to protect behaviour. The behaviour of a computer program is the most valuable part of the program, its progress and development is expensive and intellectually demanding. It can be quickly cloned by someone who does not carry out the same level of research and development expenses as the creator because the know-how embodied in it is borne on the face of the software product. A skilled engineer need only study the program in operation to know how to create a functionally and relatively alike product.

It might be that there is too little encouragement to develop a creative program behaviour if clone products could appear very quickly in the market place. Nevertheless, protection of profitable program behaviour by copyright law contravenes both its conventional standards and specific provisions of the statute that embodies them. Copyright protection would also provide such a long period of protection to profitable behaviour as to bring about market troublesome effects of a different sort, harming the buyers welfare by banning for seventy five years functionally indistinguishable products, having separately created texts.

What I have proposed is that there should be a governing body of legal technical and marketing experts to bring together the text and behaviour of software, computer program. With their individual expertise they would be able to analyse the product and its function in relation to others, the market it will enter it should enter and a suitable time lead before others would be able to copy, and the other aspects which I have discussed earlier. Legally, there should be a harmonious link between past present and future legislation, and with this thought of linkage between, professions and legislations, we should be able to go forth and look forward to this new and vast industry that is becoming more and more a way of life to all.

We have learned from the past that new ideas and inventions are special. Laws have come a long way from St Columba and his little copyright infringement. Many different types of people have put our laws together and they have worked well with the passing of time. Look how the laws have changed since Gutenbergs Printing Press in 1456 when he invented his half tone Laptop, or the Statute of Queen Anne. I think even the London booksellers that told the tragic stories of piracy ruining honest businessmen, their wives and children, would have choked if they had seen Bill Gates Bank Book

FOOTNOTES and REFERENCES

Nimmet D. The Economist: Dec 1996 The Boom of the Internet

C.P. Snow, NY TIMES, March 15, 1971, reprinted in JAMES B. SIMPSON, SIMPSON'S CONTEMPORARY QUOTATIONS 144 (1988).

Abraham Lincoln

The word 'technology' comes from the Greek word 'techne' meaning art or craft, so that suggests a set of crafts or techniques for making things.

Beck, S.F., Copyright - L SC 311 Information Literacy, New Mexico State University Library, Las Cruces, 1998

Sedgwick, A., International Copyright by Judicial Decision, The Atlantic Monthly, Volume 43, No. 256, 217-230, February 1879

Susan E Beck. New Mexico State University, Las Cruces, NM

We should remember that printing presses had been developed in China earlier than 1456. But ideas spread very slowly from China in those days. Besides, the chineese alphabet is made up of 80,000 letters so this was more technology needed to print in China than was needed in Europe.

In 1996, the Lord Chief Justice, Lord Bingham wrote, "Historically, the constitutional significance of Magna Carta has depended much less on what the charter said, than on what it was thought to have said. What it was thought to have said was the subject of constant development, with the aid of some statutory reinforcement, over succeeding centuries. It was this process which led to the English Bill of Rights, the heavy reliance placed on Magna Carta by the American colonies in their battles against the crown, the constitution of the United States and, more recently, the constitution of the Republic of India."

John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and faithful subjects, greeting. Know that we, out of reverence for God and for the salvation of our soul and those of all our ancestors and heirs, for the honour of God and the exaltation of holy church, and for the reform of our realm, on the advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman church, Henry archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Conventry and Benedict of Rochester, bishops, of master Pandulf, subdeacon and member of the household of the lord pope, of brother Aymeric, master of the order of Knights Templar in England, and of the noble men William Marshal earl of Pembroke, William earl of Salisbury, William earl of Warenne, William earl of Arundel, Alan of Galloway constable of Scotland, Warin fitz Gerold, Peter fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew fitz Herbert, Thomas Basset, Alan Basset, Philip de Aubeney, Robert of Ropsley, John Marshal, John fitz Hugh, and others, our faithful subjects:

Harry Hillman Chartrand Journal of Arts Management, Law & Society Volume 30, No. 3, Fall 2000

Under Common Law many rights initially derive from inscribing or copying ones name and explaining ones title to property on a register. Thus in medieval England to obtain the right to farm a particular piece of land, ones name had to be inscribed or written, by oneself or a scribe of Church or State, on a register of tenants. This was, and is, called copyhold to the land

William Caxton (ca. 1422-1491), translator and publishers, was England's first printer. He mastered the craft because his "pen became worn, his hand weary, his eyes dimmed" with copying, so he "practiced and learnt" at great personal expense how to print. His first book, and the first book printed in English, was his translation of Raoul Le Fevre's Recueil des histoires de TroyeMorte Darthur. Caxton used only one device, which appeared for the first time on the last page of the Sarum Missal printed for him in Paris by Guillaume Maynyal in 1487. http://www.newadvent.org/cathen/03469a.htm

Ward & Trent, et al. Cambridge history of English and American literature: An encyclopedia in eighteen volumes First Published in 190721

translated in Albert Beebe White and Wallce Notestein, eds., Source Problems in English History (New York: Harper and Brothers, 1915).

http://www.fordham.edu/halsall/source/mcarta.html

The gild franchises of the merchants and manufacturers gave to them a "collective lordship" similar to the private lordship of the barons, for their gilds were erected into governments with their popular assemblies, their legislatures, their courts, their executives, and even with authority to enforce fines and imprisonment of violators of their rules. Their most important sovereign privilege granted by the King was that of binding all the members by a majority vote so that they could act as a unit. These merchants' and manufacturers' gilds, at the height of their power, were not only legalized "closed shops" but also legalized governments. (Commons 1939: 225).

In this attempt at control, an increasingly prominent part came to be played by the Stationers' Company. Since its formation in 1403 from the old fraternities of scriveners, limners, bookbinders, and stationers, it had sought to protect its members and regulate competition. Its first application for a royal charter in 1542 seems to have gone unheeded; but in 1557, an important date in the English book trade, the interests of the crown (then the Roman Catholic Mary Tudor), which wanted a ready instrument of control, coincided with those of the company (under a Roman Catholic first Master), and it was granted a charter that gave it a virtual monopoly. Thereafter, only those who were members of the company or who otherwise had special privileges or patents might print matter for sale in the kingdom. Under the system of royal privileges begun by Henry VIII, a printer was sometimes given the sole right to print and sell a particular book or class of books for a specified number of years, to enable him to recoup his outlay. This type of regulation now came into the hands of the Stationers' Company. After licensing by the authorities, all books had to be entered in the company's register, on payment of a small fee. The first stationer to enter a book acquired a right to the title or "copy" of it, which could then be transferred, as might any other property.

http://www.library.utoronto.ca/robarts/microtext/collection/pages/station2.html

. (Commons 1939: 226).

The next hundred years, until the Act of Settlement in 1700, was substantially the struggle of farmers and business men to become members of the Commonwealth, whereby they might have courts of law willing and able to convert their customary bargains into a common law of property and liberty. The court which abolished the power of the gilds began to take over the work of the gilds. Their private jurisdiction became a public jurisdiction. And the very customs which the gilds endeavored to enforce within their ranks became the customs which the courts enforced for the nation. The monopoly, the closed shop, and the private jurisdiction were gone, but the economics and ethics remained. Much later, in the modern commonwealth, other functions of the gilds, such as protection of the quality of the product and the qualifications of practitioners, have also been taken over by courts or legislatures (Commons 1939: 230).

The Act of the Long Parliament affirmed the rights of individual publishers to their copies and forbade other publishers to counterfeit works of other publishers. This was necessary because Parliament had done away with the Kings Star Chamber, under whose provisions the copyright system had developed. It also during this period that John Milton protested censorship in his Areopagitica and made his call for a free press.

Locke, J., Two Treatises of Government, Cambridge University Press, (1690)

Duniway, C.A., The Development of Freedom of the Press in Massachusetts, New York, 1906

Franchises were not taken from the personal control of the monarch until the victory of parliament in the civil wars and not completely until the Act of Settlement in 1700, which confirmed the Case of Monopolies of 1602 and the Statute of Monopolies of 1624. Taxes were not made certain until, after 1689, they could be levied only by consent of Parliament. By these measures business, based on predictable prices, was permitted to develop unhampered by arbitrary interference of the sovereign. (Commons 1929: 231).

Blackstone, W., Commentaries on the Laws of England, 4th ed., 1771. 400407.

Ward & Trent, et al. The Cambridge History of English and American Literature. New York: G.P. Putnams Sons, Vol. IV, pp. 446447 New York: 1907-21

Dr. Jonathan Swift. Domestick Chaplain to his Excellency the Earl of Berkeley. 1700/Auther first published Miscellanies in Prose and Verse. 1711. 2nd edn. 1713.

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Author's or Purchasers of Such Copies 8 Anne, c. 19 (1709) Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families

Ward & Trent, et al. Cambridge history of English and American literature: An encyclopedia in eighteen volumes First Published in 190721

Keyes, A.A., C. Brunet, Copyright in Canada: Proposals for a Revision of the Law, Consumer and Corporate Affairs Canada, Ottawa, April 1977. It is certainly true that the works of creators will not be the subject of mass production and distribution if entrepreneurs cannot be assured of realizing a reasonable return The problem therefore lies in finding the proper equilibrium which allows a creator to pursue his rights, and to benefit from the use of his works, but which also assures the entrepreneur reasonable returns. This Paper is devoted to a consideration of how this balance may be achieved within the public interest

Shirata, H., The Origin of Two American Copyright Theories: A Case of the Reception of English Law, Journal of Arts Management, Law and Society, Fall 2000 (published originally in Japanese in the Comparative Law Journal (Hikakuhou Kenkyu), Japan Society of Comparative Law (Hikakuhou Gakkai) No. 60, 1999.)Although the 1710 statute aimed to abolish monopolies, monopolistic booksellers attempted to forge a case which would nullify its scheme and provide eternal protection for their businesses. We can see that in the actions brought after 1731 when statutory copyright protection began to expire. They even colluded to accomplish their goal. A series of these actions [were] known as the Battle of the Booksellers''

Commons, J.R., Legal Foundations of Capitalism, MacMillan, NYC 1939 1924, p. 224.The court of King's Bench, the highest court of the common law, divided on the question, the majority supporting Lord Mansfield, who went to the furthest possible extreme in his identification of the right of exclusive copying and selling the copies of one's manuscript with the right of exclusive holding and selling physical things and their products copyright like the ownership of physical objects, the perpetual property of the author, his heirs and assigns forever. This outcome Mansfield expressly contemplated, saying, "property of the copy thus narrowed (i.e. defined as a common-law right] may equally go down from generation to generation, and possibly continue forever." This conclusion was vigorously protested by Justice Yates, the only dissenting justice, saying, "This claim of a perpetual monopoly is by no means warranted by the general principles of property."

Blackstone, W., Commentaries on the Laws of England, 4th ed., 1771. 400407.

Locke, J., Two Treatises of Government, Cambridge University Press, (1690)

Encyclopedia Britannica, publishing, history of England, June 2000,

Sedgwick, A., International Copyright by Judicial Decision, The Atlantic Monthly, Volume 43, No. 256, 217-230, February 1879. Mr. Justice Yates had very clear and definite notions as to the limits of property, but a reference which he makes to the civil law throws a stronger light on his view of the whole subject than any of his direct reasoning. What the Institutes have to say relating to "wild animals," he observes, "is very applicable to this case." And he then proceeds to draw a comparison between these two singularly related subjects. Animals ferae naturae are yours "while they continue in your possession, but no longer. " So those wild and volatile objects which we call ideas are yours as long as they are properly kenneled in the mind. Once unchain or publish them, and they "become incapable of being any longer a subject of property; all mankind are equally entitled to read them; and every reader becomes as fully possessed of all the ideas as the author himself ever was."

http://members.aol.com/ntgen/hrtg/mass.html

This had the effect of limiting the power of the Crown to the grant of monopolies to grants only for limited periods (14 years - the duration of two training periods for craft apprentices) and most importantly only for "manners of new manufacture" that were introduced into the realm by the recipient of the monopoly. Such grants were, however, conditioned on their not being "mischievous to the state" (for example by raising prices of commodities) or "generally inconvenient"

A series of articles by Edward C. Walterscheid starting in 76 JPTOS 697 (1994) and in particular Part 5 at 78 JPTOS 615 (1996) discusses in detail the antecedents of the U.S. patent system. Patents in the colonial period seem generally to have ben granted as a result of petitions to the colonial legislatures rather than as a result of any general law, although Massachusetts and Connecticut enacted simplified versions of the Statute of Monopolies confining the grant of monopoly rights to "new inventions" which rights were to be granted only "for a short time."

The first major piece of patent litigation in England after the Statute of Monopolies, Dollands case on a prior invention that had been concealed, came before the Court of Common Pleas in 1766 and the famous cases of Arkwright v. Nightingale and R. v. Arkwright both on Arkwrights machine for spinning cotton came to the courts in 1785.

This was not true in Europe where abolition of the patent system was seriously considered at various times in both the United Kingdom and Prussia (Bismarck was an opponent) and the system was actually abolished for a while in the Netherlands.

Congress passed this act in 1890, and this is the source of all American anti monopoly laws. The law forbids every contract, scheme, deal, conspiracy to restrain trade. It also forbids conspirations to secure monopoly of a given industry. The ideas were new and had to wait before they could achieve some efficiency. The Standard reorganized once more, in a holding in the Standard Oil Company (New Jersey) which now coordinated the whole machine, that is 70 companies and 23 refineries controlling 84% of the crude oil refined in the US in 1899. Ten years later, international competition (from Canada, Peru, Rumania, Poland, India or Russian) and the struggle of the independents lowered this percentage to 14 %. Theodore Roosevelt committed himself in 1901 and during both of his mandates to a strong war against monopolies, launching the federal government in 1906 in a lawsuit against the Standard because of discriminatory practices on the market, abuse of power and excessive control on the American oil industry. http://www.micheloud.com/FXM/SO/antitrust.htm

In 1975 the Department of Justice issued a list of nine possible types of restriction that might be present in a patent license agreement that the Department believed to be per se illegal. These were known as "the nine no-no's". At least eight of them would today be addressed under a rule of reason approach and likely to be regarded as lawful under many circumstances.

A similar title was used for all acts relating to patents before the consolidation of 1870.

Patent Act 1793 section 1; the term "art" was replaced by "process" in 1952 but this term is itself defined as a "process, art or method" 35 USC 101.

Patent Act 1793 S3 http://etext.lib.virginia.edu/journals/EH/EH40/walter40.html

http://www.screwschool.com/term/his133.htm

The 1790 Act required that the applicant be the "first and true inventor" and that the sibject of the invention was "not before known or used." These requirements were replaced in the 1793 Act by requiremeents that the applicant be "the true inventor" and that the invention had not been "known or used before the application." The Act of 1800 amended the second of these requirements to those inventions "never before used in this or any foreign country". In Bedford v. Hunt 3 F. Cas. 37 (C.C. D. Mass, 1817) it was held that as between two parties claiming to be the first to invent a particular invention, the patent should be granted to the first to reduce it to practie

27 U.S.1 http://www.ipmall.fplc.edu/ipcourses/jepson/unit3abcd/pennock.htm

This was in effect a codification of the US Supreme Court's decision in Grant v. Raymond 31 U.S. 218 (1832)

31 US 218. http://press-pubs.uchicago.edu/founders/documents/a1_8_8s16.html

After the Patent Act of July 4, 1836, patents were numbered, and patent No. 1 was issued on July 13, 1836. The patent office went back and numbered the older patents, and an X suffix was used to distinguish them from the newer patents. The first patent ever issued became patent number 1X. The Patent Office fire of December 15, 1836 destroyed all of the patent drawings to that date. About 2,845 patents were restored and reconstructed, but it is suspected that reconstruction artists may have reflected the drawing style of the 1840s rather than that of the originals

Patent Act 1836 S 6. http://www.patentstation.com/mdm/p142.htm

Ibid this section also provided that if the Patent Office rejected the application the applicant could get a particular refund of the application fee. The bars listed were: 1) prior invention in the United States by another; 2)prior patenting or description in a printed publication anywhere in the world; public use or sale with the applicant's consent.

Patent Act 1836 S 8, Patent Act 1836 S 7, this section also provided that if the Patent Office rejected the application the applicant could get a particular refund of the application fee.

Patent Act 1836, Section 9

Additionally it was provided that the grant of a foreign patent for the same invention did not bar the grant of a U. S. patent as long as the application for the U. S. patent was filed within six months of the foreign grant and that thee had been no introduction "into public and common use in the United States" before the filing of the application.

Patent Act 1839 S. 10. http://www.patentstation.com/mdm/p142.htm

52 US 248 (1850). The key reasoning in the decision was "unless more ingenuity and skill ... (is applied in the new invention) ... than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention."

The examiners in chief were to be appointed by the President on the advice and consent of the Senate.

The term seems to have been a compromise between the Senate which wished to confirm the term of a patent to fourteen years and the House which wished to maintain the possibility of extending a fourteen year patent by a further seven years in certain circumstances.

Godfrey v. Eames 68 U.S. 317. The case held that amendments could not introduce "a distinct and different invention" that had not been "contemplated by the specification as submitted at the outset".

70 U.S. 315. http://www.girdler.com/girdline.htm

The term was originally six months, it was changed to one year for utility patents in 1900.

However, no specific implementing legislation was enacted until 1903 and it is questionable what the effect of the Convention was in the United States in the interim.

http://www.antitrustcases.com/statutes/sherman.html

Establishment of the U.S. Circuit Courts of Appeals: "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes."

26 Stat. 826.

March 3, 1891.

Judiciary Act 1893

This term was extended to twelve months in 1903 following the 1901 amendment to the Paris Convention.

http://ei.cs.vt.edu/~history/Zuse.html

Konrad Zuse wrote the world's first chess-playing program using Plankalkl.)

Zuse was unable to convince the Nazi government to support his work for a computer based on electronic valves. The Germans thought they were close to winning the War and would not support further research. Zuse left for Zurich to finish his work (the Z4) and later moved to the United States, where he formed his own company for the construction and marketing of his designs.

314 U.S. 84, 51 USPQ 272. Argued Oct. 22, 23, 1941. Decided Nov. 10, 1941 / This is an action in equity brought by respondent for infringement, inter alia, upon claims 2, 3, and 11 of patent No. 1,736,544, granted November 19, 1929, on the application of H. E. Mead, filed August 24, 1927, for a cigar lighter. The District Court held these claims not infringed. 34 F.Supp. 146. The Circuit Court of Appeals reversed, holding them valid and infringed. 2 Cir., 117 F.2d 361. We granted the petition for certiorari, limited to the question whether claims 2, 3, and 11 of the Mead patent are valid, because of a conflict between the decision below and Automatic Devices Corp. v. Sinko Tool & Manufacturing Co., 112 F.2d 335, decided by the Circuit Court of Appeals for the Seventh Circuit.

307 U.S. 5, 41 U.S.P.Q. 155 (1939) April 17,, Decided / The courts have held valid and infringed certain claims of three patents granted to Genzo Shimadzu, a citizen and resident of Japan. The earliest is for a method of forming a finely divided and, consequently, more chemically reactive, lead powder. The second is for a method or process of manufacturing a fine powder composed of lead suboxide and metallic lead and for the product of the process. The third is for an apparatus for the continuous production of lead oxides in the form of a dry fine powder.

Such powder is useful in the manufacture of plates for storage batteries.

314 U.S. 84, 51 USPQ 272. Argued Oct. 22, 23, 1941. Decided Nov. 10, 1941

Part of the impetus for the revision was the adoption of the United States Code system in 1926. When the code was established prior laws had been compiled into it but nor re-enacted. Subsequently it was felt desirable to clean up and re-enact each title of the code as positive law. In 1952 it was patents turn.

The definition specifically stated that "patentability shall not be negatived by the manner in which the invention was made", apparently to ensure that issues of obviousness were assessed objectively and that invention did not have to be the result of a "flash of genius".

This provision was intended as a partial statutory overruling of the US Supreme Court's decision in Halliburton Oil Well Cementing Co v. Walker 71 USPQ 175 (1946) which had held that any definition of a component of a claim by the function that it was to perform lacked clarity and constituted an "overhanging threat" which could serve to "frighten[] from the course of experimentation ... inventive genius [which] may evolve many more devices to accomplish the same purpose."

http://air.fjc.gov/history/landmark/22a_nav.html

35 USC 25 and 26.

35 USC 282

383 U.S. 1, 148 USPQ 459.

402 U.S. 313, 169 USPQ 513.

35 USC 102(e), 104, 351- 376.

35 USC 154.

35 USC 200 - 211.

35 USC 301.

25 USC 302-7.

Diamond v. Chakrabarty 206 USPQ 193

35 USC 111

35 USC 116.

35 USC 141, 28 USC 1295

The Court of Appeals for the Federal Circuit has inter alia exclusive jurisdiction over appeals from decisions of the Board of Patent Appeals and Interferences and over appeals of final decisions of all district courts on actions based in whole or in part on "any Act of Congress relating to patents". The new statute did not, however, abrogate the right of someone denied patent rights or losing an interference from bringing a civil action against the Commissioner of Patents before the District Court in Washington D.C. A major reason for the creation of the Federal Circuit was a sense of lack of consistency in dealing with patent cases in the different regional circuits. During the 1970's there was a growing feeling that certain Circuits were anti patent and others pro patent so that forum shopping was rife.

35 USC 173.

35 USC 294

35 USC 156

The legislation was a compromise between the ethical and generic drug industries after the Federal Circuit decision in Roche v. Bolar 21 USPQ 937 had held that premarketing testing (required by the FDA) by a generic drug manufacturer constituted patent infringement.

35USC103(c).

35 USC 115(a).

35 USC 135(d).

35 USC 271(f)

This was a legislative overruling of the US Supreme Court decision in Deepsouth Packing Co. v. Laitram 406 U.S. 518, 173 USPQ 769 (1972)

35 USC 141.

35 USC 157.

35 USC 362.

35 USC 156.

35 USC 184 and 185.

(Process Patents Amendment Act) 35 USC 271(g), 35 USC 287, 35 USC 295.

35 USC 271(e).

35 USC 271(d).

35 USC 105

35 USC 271(h), 35 USC 296

(35 USC 104)

35 USC 111(b) and 119(e)

35 USC 154

35 USC 271

(35 USC 103 (b))

(35 USC 287(c).

149 F.3d. 1368 47 USPQ2d 1596 (Fed Cir 1998).

51 USPQ2d 1081.

http://ei.cs.vt.edu/~history/Zuse.html

Konrad Zuse wrote the world's first chess-playing program using Plankalkl.)

http://www.library.upenn.edu/special/gallery/mauchly/jwmintro.html

http://inventors.about.com/science/inventors/library/weekly/aa060298.htm

http://inventors.about.com/science/inventors/library/inventors/blatanasoff_berry.htm

The war effort prevented Atanasoff from finishing the patent process and doing any further work on the computer. When they needed storage space in the physics building, they dismantled the Atanasoff-Berry Computer.

http://www-groups.dcs.st-andrews.ac.uk/~history/Mathematicians/Aiken.html

http://www.gss.tue.bw.schule.de/z_sanna.html

The computer, controlled by pre-punched paper tape, could carry out addition, subtraction, multiplication, division and reference to previous results. It had special subroutines for logarithms and trigonometric functions and used 23 decimal place numbers. Data was stored and counted mechanically using 3000 decimal storage wheels, 1400 rotary dial switches, and 500 miles of wire. Its electromagnetic relays classified the machine as a relay computer. All output was displayed on an electric typewriter. By today's standards, the Mark I was slow, requiring 3-5 seconds for a multiplication operation.

http://gsyc.escet.urjc.es/docencia/asignaturas/informatica-basica/transparencias/tema01/img8.htm

Electrical Numerical Integrator And Calculator

This is the settings used for different weapons under varied conditions for target accuracy

the branch of the military responsible for calculating the tables

http://inventors.about.com/science/inventors/library/weekly/aa050898.htm

http://ftp.arl.mil/~mike/comphist/54nord/

http://pup.princeton.edu/titles/5134.html

http://inventors.about.com/science/inventors/library/weekly/aa062398.htm

http://www20.brinkster.com/llangness/htmlpages/tube.html

http://www.pbs.org/transistor/album1/addlbios/egos.html

http://americanhistory.si.edu/csr/comphist/eckert.htm

The research for the project proceeded badly, and it was not until 1948 that the actual design and contract was finalized. The Census Bureau's ceiling for the project was $400,000. Eckert and Mauchly were prepared to absorb any overrun in costs in hopes of recouping from future service contracts, but the economics of the situation brought the inventors to the edge of bankruptcy.

http://www.fourmilab.ch/documents/univac/

http://inventors.about.com/library/weekly/aa052198.htm

http://inventors.about.com/science/inventors/library/inventors/blhollerith.htm

http://inventors.about.com/library/weekly/aa031599.htm"

http://inventors.about.com/science/inventors/library/inventors/blmicroprocessor.htm" \l "mooreandnoyce

http://inventors.about.com/gi/dynamic/offsite.htm?site=http://www.sony.com/SCA/"

http://inventors.about.com/library/weekly/aa121598.htm

http://inventors.about.com/gi/dynamic/offsite.htm?site=http://www.bricklin.com/history/saiproduct1.htm

"I'm not rich because I invented VisiCalc, but I feel that I've made a change in the world. That's a satisfaction money can't buy." - Dan Bricklin "Patents? Disappointed? Don't think of it that way. Software patents weren't feasible then so we chose not to risk $10,000." - Bob Frankston on not patenting VisiCalc.

In 1975 Two young programmers realized that a software program already written for microcomputers could work on the Altair. Ed Roberts was soon contacted by Harvard freshman Bill Gates (of Microsoft fame) and programmer Paul Allen. Within six weeks, Gates and Allen compiled a version of BASIC to run on the Altair. Allan was offered a position by Roberts as the Director of Software and the only member of the software department. Gates, who was then still a student, started working for MITS part-time after he left school.

http://inventors.about.com/library/weekly/aa120198.htm

Windows 2.0 had icons to represent programs and files, improved support for expanded-memory hardware and windows that could overlap. Apple Computer saw a resemblance and filed a 1988 lawsuit against Microsoft, alleging that Microsoft had broken the 1985 licensing agreement. In their defense, Microsoft claimed that the licensing agreement actually gave them the right to use Apple features. After a four-year court case, Microsoft won. Apple claimed that Microsoft had infringed on 170 of their copyrights. The courts said that the licensing agreement gave Microsoft the rights to use all but nine of the copyrights, and Microsoft later convinced the courts that the remaining copyrights should not be covered by copyright law. Bill Gates claimed that Apple had taken some of its ideas from the graphical user interface developed by Xerox for Xerox's Alto and Star computers. If Microsoft had lost the lawsuit, Microsoft Windows might never have become the dominant operating system that it is today.

Lance Rose. Net Law: Lawrence Levitsky. 1995

Gregory Aharonian PATNEWS: Software patent statistics for 1994 http://www.eff.org/pub/Intellectual_property/1094_softpatent.stats

http://www.patents.com/patents.htm

http://www.ibiblio.org/patents/document.html

http://www.marketitright.com/home.asp?partner=63

http://www.patents.com/patents.htm

Gregory Aharonian Software patent statistics for 1994: PATNEWS

http://patents.ame.nd.edu/mpep/29/toc.html

http://www.popa.org/

Gregory Aharonian Software patent statistics for 1994: PATNEWS

Gibson, W., Neuromancer, New York, Ace, 1984; Count Zero, New York, Arbor House, 1986, Mona Lisa Overdrive, New York, Bantam, 1988; Virtual Light, New York, Bantam, 1993.

Lance Rose. SysLaw http://www.eff.org/pub/Intellectual_property/is_copyright_dead.paper

http://www.networkcommerce.com/copyright.asp

Re-publishing works taken from the Net is often defended as fair use. Computer artists have been known to plunder digitised images they find on the Net without obtaining permissions. Similarly, some bulletin board operators publish CD-ROMs of BBS-resident shareware without the shareware owner's permission.

Lance Rose

MULTIMEDIA COMPUTING: COPYRIGHT LAW'S "LAST STAND, Sprague, supra note 12, at 666-67. A derivative work is defined as "a work based on one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted . . . ." 17 U.S.C. 101 (1976).

Ibid infra notes 108-143 and accompanying text

www.loc.gov/copyright/docs/de

Yoches, E. Robert. Communications of the ACM Feb 1989 v32 n2 p169(3) Computing Machinery, Inc. 1989.

http://www.bitlaw.com/copyright/index.html Copyright law in the U.S. is governed by federal statute, namely the Copyright Act of 1976. The Copyright Act prevents the unauthorized copying of a work of authorship. However, only the copying of the work is prohibited--anyone may copy the ideas contained within a work. For example, a copyright could cover a written description of a machine, but the actual machine itself is not covered. Thus, no one could copy the written description, while anyone could use the description to build the described machine

http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/copyrtact/query=*/doc/{t3}? A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

http://www.loc.gov/copyright/

Yoches, E. Robert. Communications of the ACM Feb 1989 v32 n2 p169(3) Computing Machinery, Inc. 1989.

http://lpf.ai.mit.edu/Patents/patents.html

http://www.uspto.gov/

http://www.european-patent-office.org/

CHAPTER 10 - PATENTABILITY OF INVENTIONS http://liiwarwick.warwick.ac.uk/uscode/35/ Sec. 100. Definitions, When used in this title unless the context otherwise indicates - (a) The term ''invention'' means invention or discovery. (b) The term ''process'' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. (c) The terms ''United States'' and ''this country'' mean the United States of America, its territories and possessions. (d) The word ''patentee'' includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.

http://fedlaw.gsa.gov/

The Green Paper: White House. http://www.ntia.doc.gov/ntiahome/domainname/domainname130.htm

Lance Rose. Net Law: Lawrence Levitsky. 1995

Section 109 of the Copyright Act, 17 U.S.C. 109, permits the owner of a particular copy or phonorecord lawfully made under title 17 to sell or otherwise dispose of possession of that copy or phonorecord

without the authority of the copyright owner, notwithstanding the copyright owner's exclusive right of distribution under 17 U.S.C. 106(3). Commonly referred to as the ``first sale doctrine,'' this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and

sound recordings.

http://www.lawdepartment.net/scripts/web.asp?web_ID=878

Green Paper: White House.

http://www.uspto.gov/web/offices/com/doc/ipnii/ http://www.uspto.gov/web/offices/com/doc/ipnii/

http://itlaw.law.strath.ac.uk/distlearn/modulesqxq/int_prop/00notes1.html

U.S. Patent and Trademark Office http://www.uspto.gov/

Copyright, Design and Patents Act 1988 (c. 48) 3.(1) In this Part "literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes (a) a table or compilation, and (b) a computer program;

http://elj.warwick.ac.uk/jilt/cases/98_2rob/" \l "fn2

Stone, S. (1996) 'Shrink-Wrap Licences Are They Enforceable?' Commercial Lawyer, February, page 7.

http://www.williamfry.ie/public.htm

http://itlaw.law.strath.ac.uk/readingqxq/intprop/91_250.html

http://www.tufts.edu/departments/fletcher/multi/texts/rome/contents.html

http://158.169.50.95:10080/legal/en/tourtabl/lloyd.html

Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988),

http://www.law.seattleu.edu/chonm/cases/vault2.html

http://www6.law.com/ny//tech/101497t5.html

http://www.computerlaw.com.au/tpapaper.html

Lotus-v-Borland 1995. http://www.eff.org/pub/Legal/Cases/Lotus_cases/

There have been four published district court opinions involving Lotus and Borland since 1992. See Lotus Dev. Corp. v. Borland Int'l, 831 F. Supp. 223 (D. Mass. 1993) (concluding that the Lotus 1-2-3 menu tree design and structure is part of the protectable expression of the program); Lotus Dev. Corp. v. Borland Int'l, 831 F. Supp. 202 (D. Mass. 1993) (holding that the Lotus 1-2-3 menu tree was copyrightable and that the time period of two and one-half years between the release of the defendant's alleged infringing work and the time of plaintiff's filing of the action did not amount to an affirmative defense of laches); Lotus Dev. Corp. v. Borland Int'l, 799 F. Supp. 203 (D. Mass 1992) (granting plaintiff partial summary judgment and denying defendant's summary judgment motion; finding that, as a matter of law, defendant's program infringed on plaintiff's copyright, but concluding that jury trial was still necessary to determine whether the infringing work was a substantial part of plaintiff's copyright); Lotus Dev. Corp. v. Borland Int'l, 788 F. Supp. 78 (D. Mass. 1992) (denying the parties' cross-motions for summary judgment).

Playboy-v-Frena: 1993 http://floridalawfirm.com/playb.html

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

General Agreement on Tariffs and Trade. 1994 http://trading.wmw.com/gatt/

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Kutten L.J. Computer Software: Protection/Liability/Law/Forms. 8-1. 1994

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Feinman. J.M.. Relational Contract and Default Rules, 3 S. Cal. Interdisciplinary L.J. 1993

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Ibid

Chip Protection Act. 1984. http://aspe.os.dhhs.gov/cfda/p42008.htm

Chip Protection Act. 1985 http://www4.law.cornell.edu/php/ukmirror_refer.php3?/uscode/17/ch9.html

Riechman, Legal Hybrids. Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Ibid

Marcovits R.S. The Allocative Efficiency of Encouraging Additional Real Investment in General and R&J in Particular: A Third-Best-Allocative-Efficiency Analysis of Various Proposed Policies. U. P. Manuscript: Columbia Law Review. 1994.

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Baker M. J. Marketing An Introductory Text. 5th. Edition: Macmillan 1994.

Enis, B. & Cox. K. K. Marketing Classics, 3rd. Edition: Allyn & Bacon. 1988

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Riechman, Legal Hybrids. Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94/Simmons. K. Short Marketing Cases: Oxford: Philip Allen. 1987

King. R. L. The Marketing Theory, Homewood, Ill. Irwin. 1983.

Riechman, Legal Hybrids. Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

Borden N. H. The Concept of the Marketing Mix. In Schwartz. G. (ed) Science in Marketing, New York: Wiley. 1965.

Samueleson P. Et Al: Manifesto: Columbia Law Review. Dec. 1994. No. 8. Vol. 94

web hosting • domain names
web design • online games