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[sUE]

Suppose Whizzo Software Company produces a program that looks, from the user's point of view, exactly like the immensely popular BozoWorks from Bozo, Inc.  Whizzo insists that it didn't copy any code from BozoWorks; it just tried to design a program that would appeal to BozoWorks users.  Bozo cries foul and sues Whizzo for violation of intellectual property laws.  Do you think the laws should favor Bozo's arguments or Whizzo's?  Why?

[Isaac]

You ask about intellectual property laws in general.  Let me answer the question separately with respect to patent, trade secret and copyright protection.

If the software in question is protectable by patent then even an independent recreation may infringe.

If there are elements of the program that are protected by trade secret I feel once the program is out in the public, the public has the right to reverse engineer the secrets and reimplement them if they are not protected by patent.

Finally, even though a split Supreme Court upheld a First Circuit Court of Appeals decision (Borland v. Lotus) allowing cloning of the user interface to develop a work alike software program because the interface was an unprotectable "method of operation", it is probably the case that in some of the federal circuits that cloning the menu structure for a program without copying the code would be found to infringe.

Probably the latter issue is the one you are really concerned about.   My personal feeling is that the law in the First Circuit is the better approach and that people who want to protect functionality should get a patent.

Of course I'm a patent attorney...