At a recent conference of the Association for Competitive Technology, Microsoft's GC, Brad Smith advocated reform of the software patent approval system. Sunday's New York Times, Business Section, page BU3 had an article entitled "Why Bill Gates Wants 3,000 New Patents" which also quoted Mr. Smith, but noted Microsoft had increased its patent applications. The article quoted Mr. Smith to the effect that "We thought we could rely on copyright" in the past. The story then opined:
"If Congress passed legislation that strengthened copyright protection to include design elements as well as software's source code, formalizing the way the courts interpreted the law in the 1970s, we could bring an end to software patents and this short, unhappy blip in our patent system's time line."
I don't know what is referred to by "design elements" or by court interpretations in the 1970s. Although the Copyright Office did register a few claims before the 1976 Act, design elements weren't an issue since there were no decisions under those registrations, registrations which, by the way, were and could only be for published programs. (And the programs were quite primitive). Even after the 1980 CONTU amendments, protection for sequence, structure, and organization, that is, non-literal elements, didn't really take off big time until Whelan v. Jaslow Dental Laboratories, 797 F.2d 1222 (3d Cir. 1986). Most of the criticism of Whelan wasn't over protecting "SSO" but instead was over Whelan's expansive definition of idea and its false analogy to regular literary works. In other words, the complaint was not that non-literal elements shouldn't ever be protected, but with how the court determined the protectible elements and therefore their likelihood of being infringed. To call Whelan liberal is like calling Rush Limbaugh right wing.
The Whelan era came to an end six years later, with Computer Associates Int'l Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Computer Associates was, from my understanding, a deliberate effort by the Second Circuit not only to cut back on Whelan but to also signal strong disapproval of Congress's choice to protect software under copyright at all, and to cripple the broad protection that seemed to be the wave of the future.
Computer Associates fell into one of the same traps as Whelan though (the analogy to literary works) and its abstraction-filtration-comparison approach (based on Mel Nimmer's false and flawed abstractions "test" and David's proposed expansion of it for software) is an abomination that has ravaged copyright like the Black Plague. But if the purpose of the abomination was to indirectly but deliberately eliminate expansive protection for what Mr. Gates was referring to as design elements, Computer Associates accomplished that purpose, and thus it may be the basis for his remark.
But even the Third Circuit has turned its back on Whelan, in Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002), while the Second Circuit mitigated a few of the untoward consequences of Computer Associates by taking a more holistic approach in Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997). And then there is Lotus Development Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd by an equally divided Court, 516 U.S. 233 (1996), reminding us that the Supreme Court is indeed in the habit of dodging, not deciding, tough copyright cases, since it dropped Lotus one week after oral argument.
Due to international obligations, the U.S. has no choice but to protect software under copyright, but the scope of that protection, including "design elements" is up to national law. And that leads us back to Microsoft's simulataneous embrace of and criticism of patent law. I would be interested in learning exactly what Microsoft's views are on the current state of software copyright and whether it thinks there are current deficiencies. I'll send this to a friend in Microsoft's legal department and perhaps he'll tell us.