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Q: Protectable Software Elements ( Answered 4 out of 5 stars,   0 Comments )
Subject: Protectable Software Elements
Category: Computers
Asked by: tomthumb-ga
List Price: $200.00
Posted: 27 Mar 2006 08:42 PST
Expires: 26 Apr 2006 09:42 PDT
Question ID: 712440
I am interested in having a software program I developed protected
from imitators.  Was wondering what elements of the user interface are
truly protectable via copyright or patent or otherwise.  Is the
navigation/information architecture protectable?  The concept?  The
use of specific types of controls or locations of controls?
Subject: Re: Protectable Software Elements
Answered By: easterangel-ga on 28 Mar 2006 02:05 PST
Rated:4 out of 5 stars
Hi! Thanks for the question.

Please take note of the important disclaimer below that the
information supplied at Google Answers is only general information and
is not a substitute, in this case, for sound professional legal
advice. Taking this into consideration, I suggest that you consult a
lawyer first before committing to any course of action.

Another thing is that even if the patent you have in mind may seem
patentable, it will still be up to the USPTO (United Stated Patent and
Trademark Office) to approve it. Then if you try to enforce it by
suing somebody, it will then be the courts which will uphold or reject
your claim. This is the same with copyrights and trademarks.

A brief background first before we get into the answers to your
question. Some of the patents that will be mentioned here are deemed
unfair by observers since they are already being used by other
software companies and maybe problematic to the whole industry as a
whole. But still these are patents granted by the USPTO. I will only
provide examples here of things granted by the USPTO so you will get
an idea what might have a good chance of approval.

One way to answer your question is to take a look at examples of GUI
patents granted in different cases. Based on these examples you can
patent GUIs based on unique functionalities and not merely on
aesthetics. Any part can be patentable as long as it will have a
unique function.

a. ?Apple's "Multiple Theme Engine" Patent? ? An attempt to patent
skins. Skinning is a functionality now widely used by other software


b. ?Apple's "Automatic URL" Patents? ? Patent on cascading menus within the GUI.


c. ?IBM's "Window Manager" Patent? ? A GUI used to manage the size and
location of windows on the desktop by using the controls within the
GUI itself acting on the windows.

d. ?IBM's "Desktop Thumbnail" Patent? ? A summary of listed files done
in a visual manner. You will see a still image of the file itself as
an icon or thumbnail whenever you invoke it on the GUI of file
directory system.

Please read the following article to get a more detailed explanation.

?Patents on Software Graphical User Interfaces (GUIs)? 

e. ?Adobe Patent on Tabbed Palettes? ? This is a good example how
murky GUI patents can be. Adobe sued Macromedia on this one. They
however settled after Adobe lost in a counter suit.

?It covers the idea of adding a third dimension to a menu system by
arranging several sets of options behind each other, marked with tabs.
This is particularly found to be useful in image processing software
of Adobe and Macromedia, but also in The GIMP and many other

?Adobe Patent on Tabbed Palettes? 

?Adobe, Macromedia reach agreement in Patent lawsuit? By Jim Dalrymple

f. ?Adobe Pattern and color abstraction in a graphical user interface?
? Again similar to software skinning.

g. ?Adobe Method and apparatus for dynamic link driver configuration?
? A GUI to manipulate link devices.

?Apple granted two patents relating to GUI themes, FireWire? by Neo

Another path you can take is to protect your user interfaces with
copyrights. However, based on these two articles, copyright protection
for user interfaces has been a rather shallow weapon.

?However, extensive litigation between Apple and Microsoft,(Apple
Computer Inc., V. Microsoft Corporation, 35 F.3d 1435 (9th Cir. 1994))
and between Lotus and Borland (Lotus Development Corp. v. Borland
International Inc., 34 U.S.P.Q.2d 1014 (1st Cir. 1995)) has shown the
relatively shallow copyright protection available for user interfaces.
As discussed below, recent decisions by the federal courts of appeals
indicate a general trend in restricting protection afforded by the
copyright laws while suggesting that patent protection is a more
appropriate alternative.?


The meat of the matter in the Apple vs. Microsoft litigation was the
?look and feel of the GUI. Wikipedia has a discussion of the topic on
?look and feel? here.

?Look and feel?  

If you want more information about the battle between Microsoft and
Apple over GUI, please go to the next link.

?Apple Computer, Inc. v. Microsoft Corp.? 

Another solution that can be available for you comes from our next
link. The author here says that instead of a simple copyright,
software makers may opt for a ?trade dress? protection.

The author states that copyright is adequate for protecting icons and
specific graphical designs.

?Although it may be reasoned from the foregoing that copyright law is
unsuccessful in providing the necessary protection for the overall
"look and feel" of a GUI, nonetheless, copyright law may provide
adequate protection for specific individual elements of the GUI, such
as icons and graphic design.?

But when it comes to the ?look and feel of the user interface, ?trade
dress? is a better alternative.

?Unlike copyright, which focuses on the balance of the author's right
to protect his work of authorship and the public's rights to gain
access to the creation, trade dress theory, which derives from
trademark law, is aimed at protecting the public from being confused
about the source of a particular product.?

?Copyright Law May Not Be Best Way to Protect Your GUI? by Ton Rafi 

?Trade Dress? is within the world of Trademark protection. It is now
beyond the scope of copyrights. Please read the following articles
about ?trade dress? so that you can get a good grasp of the concept.
?Trade dress is governed by the same set of laws that protects
unregistered trademarks. Like a traditional trademark, trade dress is
a form of commercial shorthand that provides a "source-associating
cue" for the unthinking purchaser. However, unlike traditional
trademark law that protects words or logos, trade dress law protects
the total packaging and design of a product.?

?Protectable trade dress is infringed when a "likelihood of confusion"
exists between defendant's trade dress and plaintiff's trade dress.
The similarity between trade dress is gauged by the "ordinary buyer"
standard. Would "unthinking" buyers believe both products came from
the same source? If the same overall impression leads the ordinary
buyer to that conclusion, infringement probably exists.?

?Trade Dress Protection: How to Tell a Book by its Cover? By Attorney
Lloyd J. Jassin

Our last link provides good commentary on when you can use ?trade
dress? to protect your work.

?The law relating to trade dress stems from the common law doctrine
prohibiting unfair competition. It can be invoked, when certain
conditions are met, to preclude competitors from copying the shape or
appearance of a company's products or packaging; hence, the name trade
dress. To qualify for protection, the dress must be non-functional (to
avoid conflict with the patent laws) and, like a trademark, must serve
the purpose of denoting the source of the product.?

?What is Trade Dress and Do You Have One?? By  Fairfield and Woods, P.C. 

Based on this answer we can see that the three weapons for protecting
someone?s work (patents, copyrights and trademarks) can be used here.
Maybe after talking to your lawyer, he or she can give the necessary
advice on which one to choose and how you should use it.

Search terms used:  
list of GUI patents
gui "look and feel" copyright
"trade dress"

I hope these links would help you in your research. Before rating this
answer, please ask for a clarification if you have a question or if
you would need further information.
Google Answers Researcher
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