Scott Hervey, a partner with Weintraub, Genshlea, Chediak Law Corporation, presented a discussion entitled IP Strategies For Start-Up Companies to the Environmental Health Entrepreneurship Academy program through the UC Davis Center for Entrepreneurship. The academy was comprised of leading environmental health graduate students and faculty from a number of schools throughout the UC system. Scott’s presentation can be reviewed by clicking on the link below.
The 11th Circuit Reminds All That Copyright Protection For Databases Is Alive And Well
By Scott Hervey
Under contemporary Copyright Law, a database is a “compilation.” A compilation is defined under the Copyright Act as “a work formed by the collection and assembling of preexisting materials or of data….” While the inclusion of a compilation as a protectable work was statutorily introduced in The Copyright Act of 1976, compilations were protected as “books” as early as the Copyright Act of 1790.
In 1991 in Feist Publications, Inc. v. Rural Tel. Serv. Co, the Supreme Court resolved a split among the circuits regarding the elements of a compilation that entitle it protection under the Copyright Act. Certain circuits had adopted what was known as the “sweat of the brow” doctrine which looked at the compiler’s effort – his own expense, skill, labor or money – as the critical contribution justifying protection. Other circuits moved away from the labor/investment approach of the sweat of the brow doctrine, and granted protection to those compilations that were sufficiently original to be considered protectable works of authorship.
Everything Old is New Again – – Not
In its long awaited decision in KSR International Co. v. Teleflex, Inc., 127 S. Ct. 1727 (April 30, 2007), the United States Supreme Court has completely changed the patent landscape. The Court held that the test used by the Federal Circuit Court of Appeals to determine obviousness under 35 U.S.C. §103 is incorrect. Because of KSR, it will now be harder to get patent claims allowed and easier to invalidate issued patents.
In KSR, Teleflex sued its competitor KSR, in the Eastern District of Michigan for patent infringement of Teleflex’s patent for an automobile pedal assembly. The invention combined an electronic sensor with an automobile pedal so that the pedal position could be communicated to a computer controlling the automobile’s throttle. KSR contended that the relevant claims of Teleflex’s patent were obvious under section 103.
Copyright Infringement and the Internet: A Closer Look at Perfect 10 v. Google and Amazon
On May 16, 2007, the 9th U.S. Circuit Court of Appeals sent a mixed message to search engines everywhere – publishing thumbnail images is legal, but a search engine may still be liable if it links customers to other sites that publish certain thumbnail images without authorization. (Perfect 10, Inc. v. Amazon.com, Inc., CV-05-04753-AHM (9th Cir. May 16, 2007) With this ruling, what’s next in the battle between advocating for the free flow of information on the Internet and protecting copyrighted material?
Perfect 10, Inc. (“Perfect 10”) an adult entertainment company that allows subscribers access to nude photos on-line, sued Google, Inc. (“Google”) in 2004 for publishing its photos as tiny images known as “thumbnails” which appear in a user’s search results. When a Google user types in a search and clicks on the resulting thumbnail, the page splits into two frames – the top of the page has the thumbnail with a warning it may be subject to copyright, and the bottom of the page has a full-size image from a third-party website. Perfect 10 alleged Google infringed its copyrights by using its images in thumbnails and by linking users to websites that re-published their photos without authorization.
Is That Expensive Custom Computer Program Really Yours?
Custom and customized computer programs create unique challenges under the Copyright Act. More and more companies have custom software written by outside programmers to automate the company’s unique business processes. Great care should be taken when a company uses outside vendors, rather than its own employees, to create the custom computer programs. Written agreements are essential. Many companies have been surprised to discover, after spending dearly for a custom software program, that the outside programmer retained the copyrights in the software and could repackage the software for sale to others simply because there was no written copyright assignment. Custom programming contracts must be carefully negotiated in order to protect a company’s investment in the newly created computer program as well as its proprietary business processes and trade secrets.
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