–

The Canadian Intellectual Property Office has released guidance on “Computer-Implemented Inventions” as planned, in the wake of the Federal Court of Appeal decision in Amazon.  While “software” is technically not patentable, a “computer-implemented invention” is.  Such an invention could fall into one of several categories: a method (art, process or method of manufacture), machine (generally, a device that relies on a computer for its operation), or product (an article of manufacture). As before, computer programs, data structures and computer-generated signals alone are not patent-eligible.

Calgary – 07:00 MDT

 

–

In 2012, LinkedIn made headlines as a result of a significant data breach. The passwords and email addresses of over 6 million LinkedIn users were hacked and posted online. Encryption and security was improved by LinkedIn in the wake of this breach. A class action lawsuit was commenced in the United States based on claims by LinkedIn “premium” users (who paid a monthly or yearly fee for upgraded services). The claim relied on an alleged breach of the terms of LinkedIn’s privacy policy which included fairly standard language about protection of personal information “with industry standard protocols and technology.” In the decision In re LinkedIn User Privacy Litigation , 2013 WL 844291 (N.D. Cal. Mar. 5, 2013), a US court has shut down the claim, deciding the plaintiffs lack standing. The claims were based on a “benefit of the bargain” concept – an argument that the claimants were allegedly entitled to security as paying customers and LinkedIn breached this promise.

The court rejected the claims since there was no indication that the extra service paid for by premium users included enhanced security or encryption, since “paid” users and “free” users received the same level of security. It is clear that claims based on breach of privacy will face a uphill battle in the US, and this decision together with the decision in last year’s iPhone class action claim demonstrate the complexities and difficulties of this class of claims.

Calgary – 7:00 MDT

Parliament has introduced a new bill (Bill C-56) to amend the Copyright Act and the Trade-marks Act, to combat counterfeit products. The bill, if it becomes law, would add new civil and criminal remedies such as:

• opening up new rights to sue for damages for counterfeits and infringing activity;
• creating new criminal offences for trade-mark counterfeits (which would mirror those currently found in the Copyright Act);
• creating new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
• grants new powers for enforcement of IP rights at the border (including detaining goods that are suspected of infringing copyright or trade-marks).

Since amendment of the Trade-marks Act is so rare, the government is also taking the opportunity to expand the scope of what can be registered as a trade-mark and fix a few other procedural problems with the current Act. This new bill is designed to bring Canada into compliance with Anti-Counterfeiting Trade Agreement.

This is one to watch in 2013.

Calgary – 07:00 MST

–

Are APIs protected by copyright?

In the long-running litigation (and hey, is there any litigation that isn’t “long-running”?) between Oracle and Google, a US court decided in 2012 that APIs in this case were not eligible for copyright protection. See our earlier post. This meant a complete loss for Oracle in its lawsuit against Google for infringement of the Java APIs used in Google’s Android software.

Copyright protects only original expression. Applied to software code (including API protocols), the law of copyright tells us that certain elements are not protectable by copyright since they lack originality. The US trial level decision in Oracle vs. Google has been appealed and the parties are now filing briefs in the US Federal Court of Appeals (a copy of Oracle’s brief is here). The briefs make fascinating reading for those interested in the finer points of copyright law and the history of the Java programming.

Oracle’s brief opens by sketching a scene: “Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix  —the fifth book—and proceeds to transcribe. She verbatim copies all the chapter titles—from Chapter 1 (“Dudley Demented”) to Chapter 38 (“The Second War Begins”). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded.”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves.”

Does this constitute copyright infringement?

One of the big issues on appeal will be whether the appeals court accepts the notion that copyright infringement can occur without any actual direct copying of code. This is the so-called SSO argument – that the “structure, sequence and organization” of the software can attract copyright protection, regardless of whether specific code is cut-and-paste. As illustrated in the Harry Potter example above.

Stay tuned. This is one to watch in 2013.

Calgary – 07:00 MST

Photo credit: Google, Inc.