New Codes No Bar to Copyright Violation
Michael Riccardi
New York Law Journal
October 26, 1999

In an intellectual property fight over computer software for processing copyright and trademark applications, a Southern District judge has ruled that the copyright interest in the software product may be infringed even if the codes used in the second program are different.

Judge Loretta A. Preska said in a detailed 27-page decision last week that similar user interfaces, even if generated by different programs, can give rise to a cause of action for copyright infringement by the original developer of the interface.

The plaintiff in O P Solutions Inc. v. Intellectual Property Network, 96 Civ. 7952 (LAP), sought to protect the screen displays or user interfaces of its software, not the "organizational structure of the actual program ... that generates the screen displays," Judge Preska pointed out.

The defendant, Intellectual Property Network, was accused of copying O P Solutions' legal software, which helps law firms process patent and trademark applications as well as related litigation and administrative proceedings.

The O P Solutions' product, called PATTSY for DOS - Dataease Version, was published in 1991 and in 1994 was modified for use with the Windows operating system. The two new products were called: PATTSY for Windows, Dataease Version; and PATTSY for Windows, MS Access Version.

A patent and trademark software product called WorldMark 4.0 was developed by IPN in 1996. In the winter of 1996-97, that company released an upgrade called WorldMark 4.1.

Both programs collect and store information on a law firm's clients and their patent and trademark applications, organizing data to allow attorneys to keep track of key dates and deadlines in the application process, Judge Preska wrote.

IPN argued that its WorldMark products, although published later than OPS's, were fundamentally different since they were created independently and use different programming language.

Comparing 160 alleged similarities between the IPN and OPS software, Judge Preska said that IPN's WM 4.0 was significantly different from preceding IPN products and similar to OPS's PATTSY programs.

Citing precedent from the Eleventh Circuit as well as a 1996 Southern District case, Judge Preska wrote that, "it is well-established that screen displays and user interfaces warrant copyright protection as non-literal aspects of a program."

The plaintiff, OPS, the judge continued, had met its burden of establishing that the defendant, IPN, had copied PATTSY.

Although OPS only had "indirect evidence," such as access by IPN engineers to demonstrations of the PATTSY software, there was enough such evidence to support a finding that the WM programs were knockoffs of the PATTSY software.

"While IPN argues that its employees did not have access to PATTSY's source or object code, it does not deny that [a software engineer] who eventually became an employee of IPN, received demonstrations of PATTSY and a demonstration disk," Judge Preska wrote.

Counsel for OPS is Melvin C. Garner of Darby & Darby, and the attorney representing IPN was Alan L. Shulman of Silverman & Shulman.

From the Law News, 99/10/29.