AIA2020 - John McEntire - IP Crash Course
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AIA2020 - John McEntire - IP Crash Course
- 1. QatarFoundation Presentation DD/MM/YY Intellectual Property Crash Course ARAB INNOVATION ACADEMY John Taylor McEntire, MBA, CLP, CPVA Director, Industry Development and Knowledge Transfer Research, Development and Innovation 15January2020
- 2. The question to yourself: Should IP be important to my company?
- 3. Apple Is Worth $1,000,000,000,000. Two Decades Ago, It Was Almost Bankrupt. Image Aug. 2, 2018 Amazon Hits $1,000,000,000,000 in Value, Following Apple Image Amazon’s founder and chief executive, Jeff Bezos, is richer, by far, than anyone in the modern world. Credit David Ryder/Getty Images Sept. 4, 2018 Apple became worth more than $1 trillion on Thursday, its shares climbing 3 percent to end the day at $207.39. Credit Jason Henry for The New York Times
- 5. Components of S&P 500 Market Value Tangible Assets Intangible Assets
- 6. Intangible Value Value created or owned by a business that has no physical form. Historically, firms mostly produced physical products and owned physical property such as factories. This has changed, as it is common for the revenue and assets of a firm to be largely based on things that can't be touched. The following are illustrative examples of intangible value. Customer experience such as the usability of a device or service on a flight. The identity and reputation of a brand. A firm with a productive and creative organizational culture that regularly produces innovation where others struggle. Talent in areas such as leadership, design, engineering, marketing and sales. Know-how Practical knowledge that allows you to do real things. Intellectual property such as trade secrets, designs, patents, copyright, trademarks and trade dress. Relationships with customers, employees, partners and communities.
- 7. Does this Affect the Investment Community?
- 8. Convergence
- 11. Blockchain in Food Supply: Walmart takes First Step Walmart will require suppliers of leafy green vegetables to implement real-time, end-to-end traceability of products on the blockchain through IBM’s Food Trust Network, a cloud-based, software-as-a-service (SaaS) solution built on the IBM Blockchain Platform. Direct suppliers must conform to one-step back traceability by January 30 2019, while partners of these suppliers must join the blockchain by September 30 2019. IBM is collaborating with other food producers and retailers, including Nestlé and Unilever, but Walmart would be the first major retailer to require the use of blockchain. Together, Walmart and IBM hope to reduce the difficulties for food traceability brought on by the use of different systems while also solving coordination and trust issues. Focusing on transparent, permanent and shared records of food origin and transportation details, successful implementation could improve food safety, reduce global food waste and cut costs and labour. However, despite these potential returns, there are a myriad of challenges to overcome before supply chains based on blockchain can become a reality. In particular, we have previously highlighted the issues of standardization, participation and scalability in the food and drink industry (see 'Blockchain's Track And Trace Functionality Could Revolutionise F&D Industry’, June 20 2018).
- 13. Where Does Your Company’s Product or Service Fit on the Technology Readiness Level?
- 16. Introduction to IP o What is IP? o Forms of IP Protection o Patents o Designs o Trademarks o Copyrights o Trade secrets o Business matters o General Process for IP Protection
- 17. What is IP? o Creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. o The Government encourages innovation by giving legal protection o Legal protection turns intangible assets into valuable exclusive assets that can be traded in the market place o IP protection ensures that your IP assets are not commercialized or used without your authorization o IP is an important component of a company value
- 18. Forms of IP Protection - PATENTS o A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. o Protection granted for 20 Years
- 19. PATENTS- Subject Matter PATENTABLE o Process or Method o Machine or Apparatus o Article of Manufacture o Composition of Matter o Chemical Composition o Physical Mixture o Improvements of Any of the Above NON PATENTABLE o Processes Performed Solely by the Mind o Laws of Nature o Natural Phenomenon o Abstract Ideas
- 20. PATENTS - Conditions NOVELTY (Must be new and not already known to the public) UTILITY (Identifiable benefit and is capable of use) NON OBVIOUSNESS (to someone skilled in the art)
- 21. Prepare and File Application Patent Office Reviews Application Office Action Patent Grants Allowance of Claims Rejection of Claims “Patent Prosecution” SIMPLIFIED PATENT PROCESS Applicant Argues/Modifies Claims
- 22. PCT IN NUTSHELL
- 23. Patent Strategies Must-have: USA & European Patent Office Very large economies: China, Japan & India Large economies: Russia (possibly Eurasian Patent Office), Brazil, South Korea & Mexico Arab Speaking Countries: GCC (and possibly Egypt) English-speaking : Canada, Australia & South Africa Far-eastern economies: Indonesia and Thailand Most common strategy: • File one provisional patent in U.S. (12 months) • File an application with the PCT (18 months) • File applications with specific countries (1-3 years) Factors to consider: • Size of market? • Where are the manufacturing centers and your competitors? • Where are emerging markets? • What is life span of product? • Demand for product in country? Approaches can be targeted: • Regionally • Internationally • Globally Rule of Thumb Initial Filing: $12-25K (Includes patent drafting and prosecution) Additional countries require filing fee per country: $2-10K Plus translation fees if required and prosecution costs Annuities per country filed: $200-1800 every four years per country Costs
- 24. Forms of IP Protection - TRADEMARKS o A mark used by a person or business to distinguish their goods or services from those of others o Protects a word, name, phrase, design, sound, fragrance, 3-D features or any such combination that is used to identify source of goods and/or services o Generally lasts as long as the trademark is used in commerce and defended against infringement.
- 25. TRADEMARKS - Distinctive? Descriptive o “Makes clean’ o SPEX optician’s services Arbitrary o ‘Diesel’ for jeans o ‘Camel for cigarettes’ o ‘Apple’ for computers Fanciful o ‘kodak’ o ‘google’ Generic o ‘apple’ for apples o ‘camel’ for camels o ‘diesel’ for petrol o ‘yellow pages’
- 26. Purpose of TRADEMARK Protection o Protect consumers from confusion as to origin (source identifier) o Protect a producer’s goodwill o Reduce consumer search costs o Origin, quality, communication functions (lifestyle, attitude, trademark image) o TMs are territory-specific and class- specific
- 27. Forms of IP Protection - DESIGNS o A Design patent is a legal protection granted to the ornamental design of a functional item. o Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents. o Design patents are not subject to the payment of maintenance fees o It permits its owner to exclude others from making, using, selling the design. o Design patents shall be granted for the term of 14 years from the date of filing.
- 28. DESIGNS Continued… Utility Patent for iPhone (US7479949) Design Patent for iPhone (USD636392) Claim 1: A computing device, comprising: a touch screen display; one or more processors; memory; and one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors, the one or more programs including: instructions for detecting one or more finger contacts with the touch screen display... Claim 1: The ornamental design for an electronic device with graphical user interface, as shown and described.
- 29. DESIGNS Continued… Utility Patent for iPhone (US7479949) Design Patent for iPhone (USD636392)
- 30. Forms of IP Protection - COPYRIGHTS Copyrights protect original works of authorship fixed in any tangible medium of expression. Copyrights only protect the expression of an idea, not the idea itself.
- 31. COPYRIGHTS - Ownership o Absent a contract, the laws of the country will govern. With a contract, however, you can define: o Who owns the copyright o Your rights (or the startup’s rights to the IP) o The rights of the creator to the IP (if any)
- 32. COPYRIGHTS – Protection Granted Rights Granted: The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. Typically, the duration of copyright is the whole life of the creator plus 50-100 from the creator's death, or a finite period for anonymous or corporate creations. Enforcement: Enforced by civil lawsuits by proving infringement. To prove infringement, the copyright owner must establish that the accused infringer is using the copyrighted material in an inappropriate way. Ownership: Rights are generally vest in the author or authors, however, many laws provide that “work for hire” or works by employees belong to the employer. Registration: Generally protection is automatically given by law, however, registrations are made to individual countries in order to provide evidence of a valid copyright. Must meet minimal standards of originality. Registration provides.
- 33. COPYRIGHTS – Infringement The use of works protected by copyright law without permission. o Literal: substantial portion copied o Non-literal: a nearly identical or strikingly similar work. o In many countries, ”substantial similarity” is used for non-literal infringement.
- 34. Data Related Categories Data: unprocessed raw information Database: organised form of the data Data correlation: correlation: observations/statistical insights Theoretical framework: generalised theories for technical phenomena Technical solution: core underlying ideas of new technologies Visualisation and simulation: valuable static or dynamic visual representations Instruction: directions to execute a procedure Software: computer-implemented/organised collection of data and automated operations, performing specified tasks
- 35. Forms of IP Protection – TRADE SECRET TRADE SECRETS Defined Any confidential business information which is not generally known and provides an enterprise a competitive edge may be considered a trade secret. Examples of potential trade secrets are: o a formula for a sports drink o survey methods used by professional pollsters o recipes o a new invention for which a patent application has not yet been filed o marketing strategies o manufacturing techniques, and o computer algorithms. Can also be Confidential Algorithms, Implementation knowledge, Production knowledge, Production methods, Experiment data, Manuals, Drawings and blueprints, Inventions, Software tools, Source code, Databases, Utlization knowledge, Simulations, Visualizations, Ideas, etc. Examples
- 36. TRADE SECRET Protections Trade Secret Source of Rights (regulatory agency) Common law or formal laws (e.g. Uniform Trade Secret Act) Acquisition Procedure Maintain secrecy, misappropriation litigation Duration of Protection Potentially unlimited while secrecy maintained Infringement Standards Unauthorized use or disclosure of information acquired in confidence or by improper means Variations: Unfair Competition, Misappropriation Costs N/A Ownership Trade secrets are generally owned by the individual or company that developed and protects them. Employees generally have obligations to their employers through employment agreements.
- 38. Different forms of IP can be used to protect one creation Example 1: Coca-Cola Owns copyright in the design of its bottles, the design of its logos, its advertising, and generally anything it creates that can be considered an original work requiring creative effort. o Holds registered trade-marks in its logo, script design and the distinctive shape of the Coke bottle. o Owns a patent on a method of making “barrier coated plastic containers”. o The formula for making Coca-Cola is a trade secret
- 39. Different forms of IP can be used to protect one creation Example 2: Google Holds registered trade-marks in its logo and script design Owns copyright in its software code Owns patents on products with device and software interaction – shows physical implementation Maintains Trade Secret on certain important algorithms Shares some code in open source communities
- 40. Khaled has developed a computer program called “Earth Worm” that guides a drill underground using new method of triangulation of sonic waves. What types of IP protection are possible? What type of IP would be most valuable? IP Basics Review
- 41. Ownership of Innovations • If you work for an employer most likely everything you do – the employer owns • Even if it isn’t part of your job your contract may say that the employer owns everything you do – you need a waiver • Patented inventions of multiple inventors would share ownership • If the Inventors work for companies, those companies would share the ownership Look at your contract before you sign.
- 42. Business Matters – Commercialization Agreements • Non-Disclosure Agreements • MOUs/MOAs • Material Transfer Agreements • Purchase Agreements • Employment Agreements • Funding Agreements • Collaboration Agreements • Joint Appointment / Visitor • Assignments • License Agreements • Income Sharing Agreements • IP Management Agreements
- 43. Business Matters – Key Terms in Agreements Who owns previously developed IP? Who owns IP to be developed? Who protects the IP? Who commercializes the IP? Who shares in the revenues? Obligations to Disclose IP Confidentiality Research Licenses Ownership of Academic Works Indemnity Disclaimers Liability Skilled negotiation and careful drafting is key.
- 44. So is IP important to this man? Then shouldn’t it be for you too?
- 45. Questions?
- 46. Thank You!
Hinweis der Redaktion
- Most of the countries in the world have their own IP law which -Intellectual property law recognizes a creator’s rights in ideas, innovations, and goodwill. Being intangible, intellectual property differs from real property (land) or personal property (physical possessions) that are secured, controlled, and protected using physical means such as fences but you can put fences around your mind. Therefore, Govt. encourages innovations by giving legal protection to your creations or inventions. Why should you care: Intangible assets add to a company's possible future worth and can be much more valuable than its tangible assets. Value of intangible assets has been increased from 17% in 1975 to 84% in 2015. Best protect their hard-earned creations and ideas from unfair competition
- Patents may be granted for the invention of any new and useful process, machine, manufacture or composition of matter, or any new useful improvement thereof. A patent is a property right that grants the inventor or owner the right to exclude others from making, using, selling, or offering to sell the invention for a limited period of time. Limited period because patent right is granted for 20 years only. In exchange for these exclusive rights, the inventor is required to disclose the full and complete details of the invention to the public. The theory behind the patent system is that if the public has access to complete inventive disclosures, it will develop new and better ways of solving the same problems. By public, it means that you need to file a patent application with the patent office and disclosing details, which will eventually be published on the patent site.
- based on these definitions I can say that ‘anything under the sun made by the man’ is patentable…. However, there are some recognized exceptions like …laws of nature, natural phenomenon, pure thinking of mind
- in order for your invention to be patentable…..apart from patent-eligible matter which we just discussed, invention should meet three conditions: Novelty: In order for an invention to be patentable, it must be new or ‘‘novel’’ (i.e., not in the prior art). If the prior art shows every element of a claim, the claim is unpatentable as ‘‘anticipated’’ by the prior art. As per IP law, prior art is ‘‘everything’’ in the public domain that existed before the filing date of a patent application. In order for a patented invention to be rejected over a prior art reference, the reference must have been public somewhere in the world. Secret or non-public materials cannot act as prior art. Rules regarding prior art differ around the world. For most foreign countries, prior art is ‘‘everything’’ prior to the priority filing date of a patent application (i.e., most countries do not recognize a ‘‘one year’’ grace period). If you have disclosed your invention in public before filing it will be rejected during examination as disclosure made by you will be prior art to your application. Prior art to include uses and sales anywhere in the world, not just the U.S. Non-obviousness: OR Inventive step: By inventive step, it is meant that the invention must differ significantly from what is already known. The solution must not be obvious to a person skilled in that technical area. That means new ways of combining known methods or objects are not necessarily patentable. Every obviousness determination considers four factual inquiries: (1) the scope and content of the prior art; (2) the differences between the prior art and the claimed invention; (3) the level of ordinary skill in the pertinent art field at the time of the invention; and (4) objective evidence of obviousness or non-obviousness (‘‘secondary considerations’’). Utility: A patent application must also demonstrate that the claimed invention is ‘‘useful’’ for some purpose to meet the utility requirement.
- It’s all about the claims. Why? The claims defined the invention.
- PCT: Rules for obtaining a patent differ from country to country. Patent protection in other countries requires international filings, usually with each country’s patent office. Most countries permit applicants a non-extendible period of 1 year from the date of filing a U.S. patent application in which to file their patent application. In most countries, if a foreign patent application is filed within this 1-year period and claims priority to a U.S. patent application, the U.S. patent application filing date is the applicable priority date of the application. Filing a PCT application can be advantageous in the following respects: (1) if an applicant is interested in filing a patent application in numerous countries, a PCT application permits the applicant to have the benefit of a PCT patent examiner’s prior art search and results before incurring the expense of filing numerous patent applications; (2) A PCT application gives an applicant additional time (30 months from the PCT filing date) to delay the expenses associated with applying for patent protection in individual countries; and (3) Many countries give credence to a PCT examiner’s examination search and opinion on patentability, which can limit the costs of prosecuting a patent application in individual countries. The PCT has 152 contracting states
- Use of symbols or signatures to identify the source of goods has been around since people first started trading and selling goods such as pottery, weapons, and clothing thousands of years ago. The purpose of these marks, to indicate the product’s source, has not changed to this day. What has changed, especially in the last one hundred years, is the protection afforded to trademarks According to IP Law, a trademark is a word, phrase, symbol, or design, or combination of words, phrases, symbols, or designs which identifies and distinguishes the source of the goods or services of one party from those of others. Trademarks promote competition by giving products corporate identity and marketing leverage The primary legal consideration is the selection of the strongest trademark possible. When considering the strength of a trademark, trademarks are ranked on a sliding scale of distinctiveness ranging from unprotectable to extremely protectable. It is a four point scale, which is why it's important to consider how you name your business. Consider the following types of trademark protections: Generic – common descriptions cannot receive any protection under trademark law because they're in wide use Descriptive – trademarks consisting of adjectives cannot be reinforced unless there is another meaning associated with the mark Suggestive – suggestive terms receive trademark protection even without a secondary meaning as long as the term implies something without describing it Fanciful or Arbitrary – these terms are distinctive and enjoy the highest degree of trademark protection; arbitrary words are meaningless without respect to the product while fanciful words are made up The main purpose of a trademark is to prevent unfair competition between companies that use consumer confusion to get more business. For example, if an independent diner used a golden, arched "M" as its logo, it could confuse customers who think the establishment is a McDonald's. Causing this type of confusion is against trademark law.
- Trademark distinctiveness is the essential component of law governing for TM and service marks. TM may be eligible for registration or registrable if it performs the essential trademark function and has distinctive character. Registrability can be understood as a continuum, with "inherently distinctive" marks at one end, "generic" and "descriptive" marks with no distinctive character at the other end, and "suggestive" and "arbitrary" marks lying between these two points. "Descriptive" marks must acquire distinctiveness through secondary meaning - consumers have come to recognize the mark as a source indicator - to be protectable. "Generic" terms are used to refer to the product or service itself and cannot be used as trademarks. ARB: signsadopted arbitrarilywithin respect of goods or services FANC: no meaning ARB/FAN: PROTECTABLE SUGGESTIVE: PROTECTABLE DESCRIPTIVE: ONLY WITH SECONDARY MEANING (Indicates product features, attribute, benefit). GENERIC: NOT PROTECTBALE. Later on, L.A. 14(3): registration may be cancelled “if the registered mark becomes the generic name for the goods or services. . .” DISTINCTIVE: : consumers see the mark as an indication of the commercial origin of the goods
- The purpose of trademark law is twofold: A trademark helps customers distinguish between products A trademark protects the owner's investment and reputation Search Cost: The benefits of trademarks in reducing consumer search costs require that the producer of a trademarked good maintain a consistent quality over time and across consumers. Hence trademark protection encourages expenditures on quality. To see this, suppose a consumer has a favorable experience with brand X and wants to buy it again. Or suppose he wants to buy brand X because it has been recommended by a reliable source or because he has had a favorable experience with brand Y, another brand produced by the same producer. Rather than investigating the attributes of all goods to determine which one is brand X or is equivalent to X, the consumer may find it less costly to search by identifying the relevant trademark and purchasing the corresponding brand Consider some of the most valuable trademarks in the world: Apple and Microsoft. These companies could not protect these marks with a physical fence. It is intellectual property law that provides a legal fence of trademark protection to protect the goodwill of the two trademarks. Companies also invest millions in advertising and marketing their brands in order to build up goodwill and consumer loyalty toward their products. Many of the trademarks that have achieved a level of popularity to be considered a household name—come from various branches of the electrical technology industry, including AT&T, Apple, GE Microsoft, Samsung, and Sony. Marks such as these are among the world’s most valuable and are instantly recognized by the general consuming public worldwide as a designation of source and associated with an expected level of quality. Indeed, the electrical industry is characterized by significant brand loyalty, and many purchasing decisions are based on brand name alone. 3. Search Cost: The benefits of trademarks in reducing consumer search costs require that the producer of a trademarked good maintain a consistent quality over time and across consumers. Hence trademark protection encourages expenditures on quality. To see this, suppose a consumer has a favorable experience with brand X and wants to buy it again. Or suppose he wants to buy brand X because it has been recommended by a reliable source or because he has had a favorable experience with brand Y, another brand produced by the same producer. Rather than investigating the attributes of all goods to determine which one is brand X or is equivalent to X, the consumer may find it less costly to search by identifying the relevant trademark and purchasing the corresponding brand mic argument.
- Design patents protect ‘‘any new, original, and ornamental design for an article of manufacture’’ for a term of 14 years from their issue date. The subject matter of a design patent may relate to the configuration or shape of an article, to the surface ornamentation on an article, or to both. If a design is primarily the result of an article’s function, a utility patent may be preferable over a design patent. For example, the following patents illustrate both a utility patent and a design patent for an Apple iPhone. Now I would ask John to talk about Copyright and trade secret/business matters.
- Courts also classify the elements of computer programs into literal and non-literal categories. Generally, source and object codes constitute the “literal” elements. Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992). The “non-literal” elements of software consist of elements other than the code and include the program’s “structure, sequence, and organization,” as well as elements of the program that are the products generated by the code’s interaction with the computer hardware and operating program, and “the various steps a programmer employs prior to actually writing the instructions or source code.” See O.P. Solutions, Inc. v. Intellectual Prop. Network, Ltd., 1999 USDistLEXIS 979 at *18 (SDNY Feb. 2, 1999); Cognotec Services, Ltd. v. Morgan Guar. Trust Co. of New York, 862 FSupp 45, 49 n.3 (SDNY 1994).4 Thus, a defendant may commit copyright infringement of literal elements if he copies the plaintiff’s source or object code, or infringe the non-literal elements if he copies the program’s structure, including general flow charts and the more specific organization of the program, including “inter-modular relationships, parameter lists, and macros.” Altai, 982 F2d at 702. Often, however, courts do not always distinguish between the two, or simply mischaracterize what is at issue in a certain case. See MiTek Holdings, Inc. 89 F3d at 1556 n.16. Indeed, as the U.S. Court of Appeals for the Second Circuit has noted: “To be frank, the exact contours of copyright protection for non-literal program structure are not completely clear.” Altai at 712. Abstraction[edit] The total concept and feel test relies on the subjective evaluation of observers who consider the question of whether the total concept and feel of one work is substantially similar to another. The idea of "total concept and feel" was introduced in Roth Greeting Cards v. United Card Co (1970).[24] The test is subdivided into the "extrinsic test", wherein a complex analysis is conducted of the concepts underlying the work, and the "intrinsic test", wherein within the judgment of an ordinary person the expression of the works are compared. The differences between the two were defined in 1977 by United States federal judge James Marshall Carter in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.:[25] The primary test utilized in comparing computer programs, the "abstraction-filtration-comparison test" is also called more simply the "filtration test".[19][29] The test, which was devised by the U.S. Court of Appeals for the Second Circuit for Computer Associates International, Inc. v. Altai, Inc., compares the elements of software at increasing levels of abstraction, from machine instructions to program function, excluding those elements not copyrightable, such as those approaches dictated by efficiency or the fundamental operation of computers, to evaluate similarity. Pattern test[edit] The pattern test created by Columbia University professor Zechariah Chafee is primarily utilized to test fiction, comparing elements of plot and character between two works to see if substantial similarity exists.[27] The more similarities exist between the two, the more likely the court will determine infringement. The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied. The AFC test was developed by the United States Court of Appeals for the Second Circuit in 1992 in its opinion for Computer Associates Int. Inc. v. Altai Inc.[1] It has been widely adopted by United States courts and recognized by courts outside the United States as well. The purpose of the abstraction step is to identify which aspects of the program constitute its expression and which are the ideas. By what is commonly referred to as the idea/expression dichotomy, copyright law protects an author's expression, but not the idea behind that expression.[6] In a computer program, the lowest level of abstraction, the concrete code of the program, is clearly expression, while the highest level of abstraction, the general function of the program, might be better classified as the idea behind the program. The abstractions test was first developed by the Second Circuit for use in literary works,[7] but in the AFC test, they outline how it might be applied to computer programs. The court identifies possible levels of abstraction that can be defined. In increasing order of abstraction; these are: individual instructions, groups of instructions organized into a "hierarchy of modules", the functions of the lowest-level modules, the functions of the higher-level modules, the "ultimate function" of the code.[8] Filtration[edit] The second step is to remove from consideration aspects of the program which are not legally protectable by copyright. The analysis is done at each level of abstraction identified in the previous step. The court identifies three factors to consider during this step: elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain.[5][9] The court explains that elements dictated by efficiency are removed from consideration based on the merger doctrine which states that a form of expression that is incidental to the idea can not be protected by copyright. In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright.[10] Eliminating elements dictated by external factors is an application of the scènes à faire doctrine to computer programs. The doctrine holds that elements necessary for, or standard to, expression in some particular theme can not be protected by copyright.[11] Elements dictated by external factors may include hardware specifications, interoperability and compatibility requirements, design standards, demands of the market being served, and standard programming techniques.[12] Finally, material that exists in the public domain can not be copyrighted and is also removed from the analysis.[5] Comparison[edit] The final step of the AFC test is to consider the elements of the program identified in the first step and remaining after the second step, and for each of these compare the defendant's work with the plaintiff's to determine if the one is a copy of the other. In addition, the court will look at the importance of the copied portion with respect to the entire program.[13]
- Foam alone: last tin holds recipe's secret Updated on the 07 August 2006 13:17 Published 06/08/2006 00:13 Print this IT IS the Holy Grail for those wanting to recreate a post-war Scottish childhood: the last known unopened tin of Creamola Foam. But the future of the drink now rests on negotiations between an Orkney baker and a businessman from Inverclyde. The exact formula which made the sugary concoction so special was lost when production ceased in 1998, leaving would-be revivalists relying on nothing more than imprecise ingredient lists and recollections of how the drink tasted, looked and felt in the mouth. An Inverclyde-based retro sweets company wants to bring back Creamola Foam so that it may be sold as part of the growing market in childhood treats from yesteryear. The firm Retrosweets.co.uk, which is based in Wemyss Bay, is in talks with Paul Groundwater - a baker in Kirkwall - who has what is believed to be the last known unopened tin of Creamola Foam. The tin - still with its 37p price tag on it - was discovered by chance in 2004 while Groundwater was renovating his shop. The container, which holds the lemon-flavour variety of the drink, is stored in a safe at Groundwater's specialist baking business. Groundwater, who learned Retrosweets.co.uk were interested in his find when Scotland on Sunday contacted him, said: "I would be unwilling to allow someone to take the tin unless we could do some kind of deal. Maybe a percentage of future profits or something like that. I think that's only fair. After all, I have kept the tin safe and in pristine condition. Even the paper in the top of the tin has not been touched. "I do hope the drink can be brought back. I liked it myself and I have fond memories of it." David Paton, the owner of Retrosweets.co.uk, said: "We're in touch and we're hoping to get a deal together so that the drink can be brought back. It's really important to get a sample of the original so that we can have it chemically analysed. "We have had lots of people asking us for Creamola Foam and we have been hunting everywhere for anyone who might be making it again or might make something which is similar. "We found a company in Germany which made a very similar product and we had high hopes for it. "We tested it, and though it tasted very similar, we felt it wasn't foamy enough so we couldn't really offer it as a Creamola Foam alternative." Paton, a specialist in online marketing, began his sweets business earlier this year. He said: "I got the idea through talking to friends and wondering where such-and-such a sweet was any more. Just out of curiosity, I started trying to track them down and found many of them were still being made. So I thought to myself there could be a real opportunity here, and so far it is proving really successful." Paton explained that his company was too new for any clear idea of annual profits, but indicated that the business was making "thousands" a week. Professor Rory Watson, an expert in Scottish cultural identity from Stirling University, said: "I do remember Creamola Foam myself, and I can quite understand why people are nostalgic for it. "Creamola Foam became popular in Scotland from the 1950s onwards. After the grim days of austerity and rationing, having a fizzy drink you could mix yourself was quite a luxury. And it remained popular. "We are nostalgic for sweets like Creamola Foam because they bring us back to a time when everything seemed much simpler and better. It wasn't actually simpler and better, it just seemed to be so at the time." The three Creamola brands - Creamola Foam, Custard and Rice - were bought by the Brands Partnership from international foods giant Nestl in 1998. Brands Partnership, a Leeds-based dried foods firm, was keen to market Creamola Custard, but in their enthusiasm to get their hands on that version of the brand, the company did not acquire the formula for the fizzy drink and no longer knows what that magic powder contained. Nestl has said it no longer has the recipe for Creamola Foam. All would-be revivalists can rely on is the imprecise ingredients list on the side of the tin. This does not list amounts of chemicals, and some substances are listed under the vague headings of "Flavouring" and "Colour". The market for sweets which today's adults enjoyed as children has seen massive growth in recent years. Favourite retro sweets north of the Border include Cherry Lips (lip-shaped gums), Foiled Ice Cups (chocolate-flavour sweets in their own little foil cake tins) and Chelsea Whoppers (chewy chocolate-flavour strips coated in cocoa powder). The Lancashire-based retro sweets business, Aquarterof.com, is now worth about 750,000 a year. Owner Michael Parker said: "I started it as a hobby four years ago and it's become bigger and bigger. I was inspired by a conversation with my brother about where all the old sweets had gone. "I was surprised to find how many are still made and which are available if you know where to look. The reason they are so hard to find is the decline of old-style sweet shops. That shop which once sold sweets will most likely now be a mini-supermaket. There's a much better margin on the other things they sell than sweets." Where are they now? SPANGLES Popular in the 1970s, the fruit-flavoured boiled sweets were discontinued in the 1980s but made a short-lived reappearance in the mid-1990s. Poor sales led to their disappearance again. NUTTY BARS Fudge in the middle, covered in soft caramel and then rolled in unsalted peanuts. Sadly, Nutty Bars have not been on sale since the 1970s. MINT CRACKNELL Had a brittle mint centre covered in milk chocolate. It was withdrawn due to the high production costs and relatively low level of sales. FRY'S FIVE CENTRES An attempt to get a mini box of chocolates in a single bar containing five different soft centres in the one wrapper. The related survivors, which contain just one flavour, mint or orange, is still available from specialists. CRISPETS Oval chocolates with coconut in them. Once sold by the quarter. Specialists stock a similar coconut macaroon sweet. AZTEC BARS A combination of fudge and nuts covered in chocolate, these bars disappeared in 1977. The adverts were actually filmed at an Aztec pyramid. PACERS Similar to Chewits in shape and texture, they were green and white striped spearmint flavour sweets. Disappeared from the shelves in the 1980s. CABANA A short-lived combination of coconut, cherry, caramel and chocolate which bit the dust in the mid-1980s.