Startup IP

with Jack Russo

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Expression, presentation & process

Jack Russo

Startup Attorney, IP Pioneer, Entrepreneur Advocate

Lessons Learned

A patent protects the idea of an invention. A copyright protects the presentation of the idea.

You can copyright source code, as well as screens.

The current trend is to bet on making more money from fame than from the proprietary rights.


Lesson: Startup IP with Jack Russo

Step #4 Copyright: Expression, presentation & process

Patent is actually protecting the actual protectable idea for the invention. Copyright would be the actual implementation of that system, the screens that get presented, the order the screens, the graphics on the screens, the pictures, the questions, the answer boxes, all the ways in which you actually present that data, that expression. Those are all protected by copyright. Whereas the idea for the system at some level of abstraction, Supreme Court is saying if you're too abstract, can't protect it. At some more detailed level of abstraction you may be able to get an actual claim of exclusivity on the entire concept.

The analogy would be at some point the idea for a paper cup, the idea for a paper cup with a certain thermal insulation, was invented. I'm sure it was many years ago and the patents have expired. But on the date when it was first arisen, someone probably wrote a claim that said, "Specially formulate paper with some thermal attributes creates a cup." The cup was well known for many, many centuries, but the thermal insulation that you can feel on this cup was new. And that new and presumably non-obvious improvement became patentable subject matter. And they could then stop others from using similar thermal material. It couldn't stop others from doing a paper cup with paper, because that's been around forever. But with this kind of paper they could stop it.

Currently today when you register your copyright, you can register source code and object code and you can submit screen displays. And the look and feel argument that I made is that lots of the value is not necessarily anymore in the source code. In fact, a lot of it is open source that's readily available. A lot of it is how do people adapt to make screens more usable. Well, if they're really functional and they're just the way people do screens these days, should there be any copyright protection? And the short answer is if you create your own original version and aren't just copying someone else's format for a screen, it's your version and separate copyright protection arises from your originality.

Anything that contains expression as opposed to what might be called ideas or functions is protectable. The other way to think about it is sort of from the public domain point of view. You can get at how big the area of IP is by asking the flip side or converse question. What's in the public domain? Any published idea that does not, that's sort of a basic idea or basic formula, is a published public domain concept. So section 102(b) of the Copyright Act says Copyright does not extend to ideas, concepts, mathematical formula, laws of nature like gravity, e=mc2, c2 = a2 + b2, the Pythagorean Theorem, all of those things are considered unprotected. And if published, they can't be a trade secret. So you can have ideas that are unpublished and confidential and new ideas that you can keep secret. So Einstein could have kept e=mc2 secret as his trade secret. He chose to publish it.

Most people these days choose to publish. In fact most of the world with this open source movement tends to be choosing to publish because they're view of life is, "I can make more money with fame than I can with proprietariness." So we see a lot of people even going out and taking what may be millions of dollars of source code, putting it on the Internet, and saying, "You'll come back to me if you want a better version of this because I've shown you how great my source code is." And you see more of that happening these days.

In my experience, folks who have used open source have had a hard time raising money because angel investors and venture capitalists don't necessarily buy the view that marketing through published open source arrangements works. I've seen other success stories like the company that is behind Linux these days has a big following of companies that buy their services. The chapter hasn't been written completely yet on this topic. There are lots of people that believe the future is open source and that the proprietariness of what is created is much more in the user interface or the user interaction or the way in which the product works with the voice.

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