Re: The GPL and Patents: ROFL

[RJack]

On 8/20/2010 12:29 PM, Hyman Rosen wrote:
> On 8/20/2010 12:19 PM, RJack wrote:
> > Yeah... exceptions such as the AFC's test for merger.
>
> And can you point to any cases where a court has found that such
> merger took place, for any significant work? Or are you going to
> point the the few bytes of program involved in the Lexmark case?

Hyman, I could have helped you argue your case a long time ago by
pointing out the summary in the Lexmark decision concerning a circuit
split but it was much more fun watching you flounder about. The cases
cited are all addressing copyright infringement defenses and not
patent rights in software per se .

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C. Doctrines of Merger and Scènes à Faire
1. Merger

I believe my colleagues offer a good description of the law of merger,
and I will not restate that law here. However, there is one aspect of
merger my colleagues do not decide that I believe is important to this
case: a Circuit split regarding the law of merger. Simply put, there is
some disagreement about whether the merger doctrine acts as a bar to
copyrightability, or simply as a defense to particular types of
infringement. See Nimmer13.03[B][3]; Mason v. Montgomery Data, Inc., 967
F.2d 135, 138, fn 5 (5th Cir. 1992); Kregos v. Associated Press, 937
F.2d 700, 705 (2nd Cir. 1991). The Sixth Circuit has not previously
taken a position on this question. The Second and Ninth Circuits have
taken the position that merger operates only as a defense to
infringement. Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.
1991); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.
2000). The Fifth Circuit holds that merger determines copyrightability.
Mason, 967 F.2d 135, 138, fn 5.
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Sincerely,
RJack :)