* Candidate for J.D. 1990, Boalt Hall School of Law, University of California, Berkeley; B.A. 1983, University of Washington. This comment received second prize in the 1989 Nathan Burkan Memorial Competition at Boalt Hall School of Law, University of California, Berkeley.
1 In 1966, the President's Commission on the Patent System recommended that computer programs per se be excluded from patent protection. This recommendation was based in part on the Patent Office's inability to deal with the administrative burden of examining such claims. THE PRESIDENT'S COMM. ON THE PATENT SYSTEM, "TO PROMOTE THE PROGRESS OF ... USEFUL ARTS" IN AN AGE OF EXPLODING TECHNOLOGY 14 (1966). See also Diamond v. Diehr, 450 U.S. 175, 197 (1981) (Stevens, J., dissenting).
2 Maier, Software Protection--Integrating Patent, Copyright and Trade Secret Law, 69 J. PAT. & TRADEMARK OFF. SOC'Y 151, 157 (1987). Although the Patent Office does not track software-related patents as a separate category, attorneys and industry executives claim that top U.S. companies have doubled, and even quadrupled, the number of applications they file. Bulkeley, Will Software Patents Cramp Creativity?, Wall St. J., Mar. 14, 1989, at B1, col. 5. IBM alone files approximately 200 software-related patents each year. Id.
3 Bulkeley, supra note 2, at B1, col. 3. Patents are also used for defensive purposes. "We use patents principally as trading material for our own freedom of action in the marketplace." Id. at B1, col. 5 (statement of Roger S. Smith, IBM's director of intellectual property law). See also Fisher, Software Industry in Uproar over Recent Rush of Patents, N.Y. Times, May 12, 1989, at 1, col. 5.
4 Section I, infra, defines and describes this subject matter in greater detail. Briefly, the look and feel of computer software audiovisual displays refers to "the sequence of the screens and the choices presented, the layout of the screens, and the method of feedback to the user ...." Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127, 1137 (N.D. Cal. 1986).
5 See, e.g., the following patents which, if litigated, are likely to involve issues of computer software look and feel: U.S. Patent No. 4,823,108 issued Apr. 18, 1989 to Gary W. Pope and assigned to Quarterdeck Office Systems, for an "improved display system and memory architecture and method for displaying images in windows on a video display"; U.S. Patent No. Re. 32,632, issued Mar. 29, 1988 to William D. Atkinson and assigned to Apple Computer, Inc., for a "display system" composed of pull-down menus used in conjunction with the Apple mouse; U.S. Patent No. 4,646,250 issued Feb. 24, 1987 to John F. Childress and assigned to IBM, for a "data entry screen for an interactive data entry system" that provides a means of identifying to the user fields where data may be entered and fields where data must be entered; U.S. Patent No. 4,486,857 issued Dec. 4, 1984 to Paul C. Heckel and assigned to Quickview Partners, for a "display system for the suppression and regeneration of characters in a series of fields in a stored record."
6 Beutel, Trade Dress Protection for the "Look and Feel" of Software: A New Source of Proprietary Rights Protection for the Software Industry?, 5 COMPUTER LAWYER, Oct. 1988, at 2.
7 15 U.S.C. § 1125(a) (1988). The Lanham Act codifies U.S. trademark law.
8 17 U.S.C. §§ 101-810 (1988).
9 35 U.S.C. §§ 1-376 (1982 and Supp. V 1987).
10 Computer programs are usually seen as a set of statements or instructions. See, e.g., 17 U.S.C. § 101 (1988). But courts and agencies must routinely distinguish specific manifestations of programs from programs per se. See, e.g., Diamond v. Diehr, 450 U.S. 175 (1980) (algorithms contained in program instructions); Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986) (the look and feel of computer software audiovisual displays); Synercom Technology, Inc. v. University Computing Co., 462 F. Supp. 1003 (N.D. Tex. 1978) (data input formats); NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT 23 (1978) [hereinafter CONTU REPORT] (data bases, e.g. encyclopedias or dictionaries, stored in magnetic form and accessed by a computer program); 53 Fed. Reg. 38,110 (1988) (policy decision on copyrightability of digitized typefaces stored in computer programs).
11 See, e.g., Sid & Marty Krofft Television Prods. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (total concept and feel of television shows and commercials); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970) (total concept and feel of greeting cards).
12 Written programming instructions (or "source code") was the subject of Whelan Assocs. v. Jaslow Dental Laboratory, 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987), and is outside the scope of this comment.
13 See, e.g., Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 614 (7th Cir. 1982), cert. denied, 459 U.S. 880 (1982); Digital Communications Assoc. v. Softklone Distrib. Corp., 659 F. Supp. 449, 465 (N.D. Ga. 1987); Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127.
14 Other elements of the computer system, such as the keyboard, central processing unit, memory storage devices, video display, printers, etc., may be involved in the process of achieving the desired result. To the extent that they interact with the user directly, they are part of the user interface (e.g., pressing keys on the keyboard to issue a command).
15 For examples of dynamic aspects of a user interface, see infra Appendix, Figures ____, _____, and accompanying text.
16 LaPlant, Mac `Look and Feel' Legal Issues Remain Unclear, InfoWorld, Jan. 5, 1987, at 23.
17 Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. at 1137.
18 J. Koltnow, Who Can Use the Macintosh Interface?, OUTSIDE APPLE, Oct. 1986 (emphasis added) (a newsletter published by Apple Computer, Inc., for outside developers).
19 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).
20 Id.
21 O'Connor, Software Firms Fear Patents May Stifle Innovation, San Jose Mercury News, Mar. 6, 1989, at 1A, col. 5.
22 CONTU REPORT, supra note 10, at 38.
23 See O'Connor, Don't Expect Japan's Start to Rise on the Software Industry Horizon, San Jose Mercury News, Feb. 12, 1989, at 1F, col. 1. "For all their efforts elsewhere, the Japanese have yet to unravel the enigmatic software business, and it doesn't appear likely they will anytime soon." Id. (assessment of Heidi Roizen, president of the Software Publishers Association). "The Japanese, Roizen maintains, don't grasp many aspects of this process and fail to deliver in key respects, such as user interfaces." Id. at 1F, col. 3.
24 Beutel, supra note 6, at 2 ("So called 'Human Factors Engineering' has become a critical and increasingly expensive aspect of new software development"); see also Ranney, 'Look and Feel' Discussed as Major Copyright Issue, InfoWorld, Nov. 11, 1985, at 13.
25 See Bonner, User Interface Wars: The Next Wave, PC COMPUTING, Nov. 1988, at 74 ("By all accounts, standardized graphics-based operating environments will rule the computer marketplace by the early 1990's").
26 Ely-Norris Safe Co. v. Mosler Safe Co., 7 F.2d 603, 604 (2d Cir. 1925) (Hand, J.), rev'd, 273 U.S. 132 (1927).
27 15 U.S.C. §§ 1051-1127 (1988). Unlike the Patent and Copyright Acts, constitutional authority for the Lanham Act comes from the Commerce Clause. Trade-Mark Cases, 100 U.S. 82, 91 (1879). The Commerce Clause grants Congress the power "To regulate Commerce ... among the several States ...." U.S. CONST. art. I, § 8, cl. 3.
28 15 U.S.C. § 1125(a) (1988). The section prohibits: [U]se in connection with any goods or services, ... [of] a false designation of origin, or any false description or representation, .... Id. The Trademark Law Revision Act of 1988 amended Section 43(a), effective November 16, 1989, to clarify that false statements about another person's product are actionable. See S. REP. NO. 100-515, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS 5577, 5603.
29 Beutel, supra note 6, at 2. But [Section 43(a)] should be construed to include only such false descriptions or representations as are of substantially the same economic nature as those which involve infringement or other improper use of trademarks. Bernard Food Indus. v. Dietene Co., 415 F.2d 1279, 1283 (7th Cir. 1969), cert. denied, 397 U.S. 912 (1970). See also Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210, 1216 (8th Cir. 1976), cert. denied, 457 U.S. 1126 (1982).
30 Trade dress traditionally has been defined as the "packaging, size, shape, color, design, or name which has been affixed to goods or services." Beutel, supra note 6, at 3. See also Bauer, A Federal Law of Unfair Competition: What Should be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L. REV. 671, 688 n.70 (1984). In recent years courts have extended trade dress protection to, among other things, imitation of the features of a product where those features are "nonfunctional." Id. at 688 n.71.
31 See Bauer, supra note 30, at 681.
32 Beutel, supra note 6, at 3.
33 A plaintiff might not be required to establish secondary meaning if the trade dress of their product is "inherently distinctive." See Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 702 (5th Cir. 1981), cert. denied, 457 U.S. 1126 (1982). Accord AmBrit Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987); Blau Plumbing, Inc., v. S.O.S. Fix-it Inc., 781 F.2d 604, 608 (7th Cir. 1986).
34 See Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 842 (9th Cir. 1987). See also Beutel, supra note 6, at 3.
35 Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 851 n.11 (1981). Moreover, Professor McCarthy described secondary meaning this way: Take as an example, a descriptive word like BEST for milk. ... [The] descriptive connotation [i.e., "highest quality"] is the "primary meaning" of the word "best." Extensive advertising and sales, over a period of time, by the seller of BEST milk may give the word "best" a new and different meaning to milk buyers. ... That is, BEST serves as a commercial symbol identifying the milk of one source and serving to distinguish that milk from milk sold by all other dairies. ... This new, trademark function of the descriptive word "best" is called the "secondary meaning" of "best" .... 1 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION, § 15:2 (2d ed. 1984) (footnotes omitted).
36 See, e.g., Stewart v. Hudson, 222 F. 584 (E.D. Pa. 1915). [B]ecause of the rapid development of the automobile business itself, it has produced such an alertness of mind toward everything connected with it, and a readiness and willingness to accept and adopt novelties, that there is the same relative difference in the speed with which the reputation of builders and others may be acquired and lost, and good wills grow up and decline. Id. at 586.
37 Beutel, supra note 6, at 4.
38 This trend is away from this characteristic, however, even in the IBM PC market. See Bonner, User Interface Wars: The Next Wave, PC COMPUTING, Nov. 1988, at 72.
39 For an illustration and a description of 1-2-3, see infra Appendix, Figure 3, and accompanying text.
40 Over time, however, other developers appropriated the interface for various products. The subsequent failure of Lotus to prevent these appropriations could leave it vulnerable on two counts. First, the existence of non-Lotus products using the interface weakens the identification consumers make with respect to Lotus as the sole developer of products with the Lotus interface. Second, inaction by Lotus may subject it to a defense of laches.
41 Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 845 (9th Cir. 1987) (emphasis in original) (quoting Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240, 1243 (9th Cir. 1984) (Lindy Pen 1) (quoting Alpha Industries, 616 F.2d at 443) (emphasis added), cert. denied, 469 U.S. 1188 (1985)).
42 Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210, 1221 (8th Cir. 1976). However, it may be relevant evidence to support a finding of secondary meaning, i.e., deliberate copying of trade dress suggests that it has secondary meaning, which is why it was copied. See Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d at 844.
43 Compare Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837 (different names of restaurants was not enough to obviate potential confusion) with Digital Equip. Corp. v. C. Itoh and Co., 229 U.S.P.Q. 598 (D.N.J. 1985) (brand labelling sufficient to avoid confusion, in light of sophistication of end users, sales methods employed, and high costs of goods).
44 See 1 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION, § 8:2 (2d ed. 1984).
45 Beutel, supra note 6, at 4.
46 Perhaps "vicarious" exposure might result, when the person on whom the buyer relies for a recommendation has been exposed to the product's look and feel in some way.
47 For example, exposure may take the form of a product demonstration before purchase, or "screen shots" in brochures, advertising, or press reviews of the product.
48 See In re Morton-Norwich Prods., 671 F.2d 1332, 1336 (C.C.P.A. 1982); In re Mogen David Wine Corp., 328 F.2d 925, 932 (C.C.P.A. 1964) (Rich, J., concurring).
49 See In re Deister Concentrator Co., 289 F.2d 496, 504 (C.C.P.A 1961); Truck Equipment Serv. Co. v. Fruehauf Corp., 536 F.2d 1210, 1219-20 n.12 (8th Cir. 1976). See also Bauer, supra note 30, at 688 n.71.
A monopoly exists when there is only one seller. See R. COOTER & T. ULEN, LAW AND ECONOMICS 37 (1988). "Market" monopoly must be distinguished from what might be called a "product" monopoly. Statutory protection under the Lanham, Copyright, and Patent Acts secures certain exclusive rights in a product to producers, authors, and inventors. They are protected as the sole source of the product, and therefore have a monopoly on the product. Where barriers, such as legal protection, make it impossible for competing firms to enter the market with the same type of product, the producer, author, or inventor has a market monopoly, i.e., the supplier and the industry are the same. See id. at 38.
50 Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 850 n.10 (1982).
51 Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 842 (9th Cir. 1987)
52 Id.
53 See supra Section I.A.
54 For an illustration and description of pull-down menus, see infra Appendix, Figure ___, and accompanying text.
55 Examples of programs that have no menus include operating systems such as MS-DOS and UNIX, some programming languages such as BASIC on the IBM PC, and entertainment programs such as "text adventures." The IBM PC version of WordPerfect, a popular word processor, displays no main menu, although submenus appear after initial commands are selected.
56 Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210, 1218 (8th Cir. 1987).
57 671 F.2d 1332 (C.C.P.A. 1982) (Rich, J., concurring).
58 See In re Morton-Norwich Prods., 671 F.2d at 1337.
59 See, e.g., Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 (1981) (arbitrary colors, chosen for capsules containing a drug, came to be used by resellers and consumers to distinguish dosages of the drug). In Inwood Laboratories, the Supreme Court upheld the district court's finding that the feature was functional, and now that the patent for the drug had expired manufacturers of generic products could produce the drug and had a "legitimate reason" for using the same colors. Id. at 858 n.20. It seems unlikely, however, that the result would be the same if the plaintiff's drug had just been released with arbitrary colors, before the market had come to rely on the color markings as a way to distinguish dosages.
60 See, e.g., Aro Mfg. Co. v. Convertible Top Co., 377 U.S. 476, 522 (1963) ("[T]o grant ... a legally protected monopoly offends the constitutional plan of a competitive economy free from patent monopolies except where there are patentable `Discoveries.'") (Black, J., dissenting); Sicilia Di Ri Biebow & Co. v. Cox, 732 F.2d 417, 429 (5th Cir. 1984) (ultimate inquiry in functionality analysis is whether protecting a feature will hinder competition), reh'g denied, 736 F.2d 1526 (5th Cir. 1984)); In re Morton-Norwich Prods. 671 F.2d at 1341 ("the effect upon competition `is really the crux of the matter'"); Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d at 1218 ("The question in each case is whether protection against imitation will hinder the competitor in competition"); Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9th Cir. 1952) ("Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection"); Avery & Sons v. Meikle & Co., 81 Ky .73, 102, 4 Ky. L. Rptr. 759, 776 (1883) ("Care should be taken not to interfere with the freedom of trade, or to foster monopolies ...").
61 See R. COOTER & T. ULEN, supra note 49, at 144-45. The ability to identify a product's producer reduces a consumer's search cost. Moreover, it is probably the case that a generic item is of lower quality than a brand name item. For example, the average quality of various consumer goods fell in the Soviet Union after the abolition of marks identifying the producing plant. Id. at 144.
On the other hand, some economists say that resources devoted to product differentiation amount to a social waste, obscuring what are otherwise identical products. Id. at 145.
62 In re Morton-Norwich Prods., 671 F.2d at 1340; Vaughn Novelty Mfg. Co. v. G. G. Green Mfg. Corp., 202 F.2d 172, 176 (3d Cir. 1953), cert. denied, 346 U.S. 820 (1953).
63 See supra note 49, and accompanying text.
64 See supra Section I.B., for a discussion of the benefits of a standard user interface. For these reasons consumers are likely to shun non-standard products.
65 For instance, it may be costly for users to invest the money and time to learn a new user interface. Where a product has enjoyed a very large market share, and where retraining costs are sufficiently high, the market may be unwilling to accept competitive products unless they offer a similar user interface. If protection is granted here, the vendor is given a de facto monopoly.
Such a result is, however, inappropriate under trademark law. No returns above those from producer identification should result from trademark protection. See Burgunder & Heckman, An Emerging Theory of Computer Software Genericism, 2 HIGH TECH. L.J. 229, 230 (1987).
66 See CONTU REPORT, supra note 10, Appendix H, at H-3 (studies commissioned by CONTU recommended a duration of copyright protection from two to 14 years).
67 Id. at 44-45.
68 See Bonner, supra note 25, at 74.
69 17 U.S.C. § 102 (1988). The enabling constitutional grant of authority comes from the Patent and Copyright Clause of the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ...." U.S. CONST. art. I, § 8, cl. 8. This clause contains a grant of authority as well as limitations on that power. See Graham v. John Deere Co., 383 U.S. 1, 5 (1965).
70 See 17 U.S.C. §§ 101, 102 (1988).
71 See, e.g., Whelan Assocs. v. Jaslow Dental Laboratory, 797 F.2d 1222 (3d Cir. 1986).
72 See Data E. USA, Inc. v. EPYX, Inc., 862 F.2d 204 (9th Cir. 1988); Williams Elecs., Inc. v. *Artic Int'l, Inc., 685 F.2d 870 (3d Cir. 1982); Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986).
73 17 U.S.C. § 101 (1988).
74 This follows from Professor Nimmer's conclusion that ideas in written form are a writing within the meaning of the Constitution. See infra note 76. Even if look and feel involves a synergism of displays, or a "gestalt," it is nonetheless embodied within an audiovisual work.
75 17 U.S.C. § 102(b) (1988). This section was intended to codify, unchanged, the common law idea expression dichotomy as a limit on copyrightable subject matter. See H.R. REP. No. 94-1476, 94th Cong., 2d Sess. 56-57, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 5659, 5670 [hereinafter H.R. REP.].
76 This limitation on copyrightable subject matter is an issue of statutory application. Professor Nimmer maintains this is not a requirement of the Copyright Clause of the Constitution: [T]here seem to be no valid constitutional grounds for denying to an idea the status of a writing. ... Within this frame of reference it seems axiomatic, hardly requiring argument or authority, to conclude that an idea in written form is a writing. 1 M. NIMMER, NIMMER ON COPYRIGHT § 1.08[D] (1988).
77 See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960) (L. Hand, J.); see also Knowles & Palmieri, Dissecting Krofft: An Expression of New Ideas in Copyright?, 8 SAN FERN. V.L. REV. 109, 126 (1980); Comment, Broderbund Software, Inc. v. Unison World, Inc.: "Look and Feel" Copyright Protection for the Display Screens of an Application Microcomputer Program, 13 RUTGERS COMPUTER & TECH. L.J. 105, 108 (1987).
78 See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
79 See 3 M. NIMMER, NIMMER ON COPYRIGHT § 13.03[A] (1988).
80 Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d at 489 (emphasis added).
81 "O body swayed to music, O brightening glance, How can we know the dancer from the dance?" W. B. YEATS, Among School Children, in W.B. YEATS: THE POEMS 217 (Finneran ed. 1983).
82 Whether particular ideas and expressions have merged has been called a "somewhat metaphysical issue." Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
83 A similar proposal advocates the adoption by copyright law of trademark's doctrine of genericism in the context of computer software. See Burgunder & Heckman, An Emerging Theory of Computer Software Genericism, 2 HIGH TECH. L.J. 229 (1988). Proving "genericism" would require a more rigorous showing of anticompetitive effect than would "de jure functionality" or its counterpart, "de jure idea" as discussed here.
84 Conventional economics theory holds that where it is costly to prevent non-paying beneficiaries from consuming a commodity, the private market may provide sub-optimal amounts of the public good. R. COOTER & T. ULEN, supra note 49, at 113. However, "the standard theory ignores the possibility that there may be alternative, less direct means" for rewarding innovation. Id. at 114. In the case of software look and feel, developers may be sufficiently motivated to innovate where their main interest is selling a software program, or computer, rather than a user interface per se. See Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 344-345 (1970).
85 See Whelan Assocs. v. Jaslow Dental Laboratory, 797 F.2d 1222, 1235 (3rd Cir. 1986); Digital Communications Assoc. v. Softklone Distributing Corp., 659 F. Supp. 449, 458 (N.D. Ga. 1987). To the extent that there are other purposes of copyright law this proposal is not inconsistent. Other purposes are "to promote learning, culture and development." Whelan Assocs. v. Jaslow Dental Laboratory, 797 F.2d at 1235.
The purpose is to grant enough, but not too much, protection such that, in the long term, optimal amounts of "ideas" are produced and available for public use. See R. COOTER & T. ULEN, supra note 49, at 135. A copyright law, ... may represent one way of resolving the conflict between the need for book revenues high enough to secure adequate production and book prices low enough not to interfere with widespread dissemination of what is written. Breyer, supra note 84, at 282.
86 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 109 S.Ct. 971, 975 (1989) (O'Connor, J.).
87 Evaluating the effects on competition should be more familiar territory for courts than deciding whether a window "exploding" from an icon in a computer display is an idea or the expression of one. (For an illustration of this phenomenon, see infra Appendix, Figure 4, and accompanying text.)
88 While decisions would continue to be ad hoc, they would involve judicial inquiry into competition, not metaphysics, and consequently litigants should be better able to predict trial outcomes.
Predictability may be all there is to the law. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." O.W. HOLMES, JR., COLLECTED LEGAL PAPERS 167 (1920).
Further, predictability of protection will itself promote free trade. One well-confirmed result in the literature on bargaining is that bargainers are more likely to cooperate when their rights are clear, and less likely to agree when their rights are ambiguous. R. COOTER & T. ULEN, supra note 49, at 100 (footnote omitted).
89 This approach is appropriate in a dispute between competing software developers in a single computer market, such as that of the Macintosh. A more difficult question arises in a case where, for example, a company such as Apple Computer claims software developers for other computers infringe the copyrights Apple holds in software products it developed for its computers. Enforcing Apple's copyright claims will not unduly hinder competition in the market for Apple's software products (since the alleged infringers have developed products for other computers). However, since Apple is asserting its rights beyond the Macintosh market, it is appropriate to analyze the competitive effects of protection on all markets in which Apple asserts its claims. (That greater market sphere of "microcomputers," however, cannot be characterized at this time as having adopted a standard user interface; where such alternative means of producing competitive user interfaces exists, protection for Apple's copyrights is less likely to unduly burden competition.)
90 For an illustration and description of the type of disk icons discussed here, see infra Appendix, Figure 4, and accompanying text.
91 For an illustration and description of a tool icon, see infra Appendix, Figure 5, and accompanying text.
92 At this point it is worthwhile to distinguish the analysis of this proposal from a traditional inquiry of whether idea and expression have merged. Merger denies protection to an expression whenever there is only one way, or very few ways, to express an idea. This comment proposes an analysis that would deny protection when, for any reason, such protection would unduly hinder competition. There may be de facto ideas capable of expression in myriad ways, only one of which is palatable to the market. Similarly, there may be a de facto idea that can be expressed in only one way, but because of the availability of substitutes or for other reasons is protectable because such protection will not unduly hinder competition in a generally defined market.
This "icon" example demonstrates how a competition-oriented analysis produces results that are consistent with precedent, yet avoid the problems of metaphysical analysis.
93 35 U.S.C. §§ 101-376 (1982 & Supp. V 1987).
94 While Jefferson was active in establishing the patent system after the adoption of the Constitution, authorship of the empowering constitutional provision has been attributed to James Madison and Charles C. Pinckney. See Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 11 J. PAT. OFF. SOC'Y 445 (1930).