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Re: The GPL and Patents: ROFL

From: Hyman Rosen
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 15:59:52 -0000
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On 8/18/2010 11:35 AM, RJack wrote:
"When a work itself constitutes merely an idea, process or method of
operation, or when any discernible expression is inseparable from the
idea itself, or when external factors dictate the form of expression,
copyright protection does not extend to the work."; Lexmark
International, Inc. v. Static Control Components, Inc., 387 F.3d 522
(6th Cir. 2004).

You are *never* going to be able to evade:

"17 USC § 102. Subject matter of copyright: In general.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work."

There is nothing to evade, and the Atari v. Nintendo case
that you yourself quoted tells you as much:
<> (cites removed)
    In conformance with the standards of patent law, title 35 provides
    protection for the process or method performed by a computer in
    accordance with a program. Thus, patent and copyright laws protect
    distinct aspects of a computer program. Title 35 protects the process
    or method performed by a computer program; title 17 protects the
    expression of that process or method. While title 35 protects any
    novel, nonobvious, and useful process, title 17 can protect a
    multitude of expressions that implement that process. If the
    patentable process is embodied inextricably in the line-by-line
    instructions of the computer program, however, then the process
    merges with the expression and precludes copyright protection.

    This court, in applying Ninth Circuit law, must determine whether
    each component of the 10NES program “qualifies as an expression of an
    idea, or an idea itself.” This determination depends on “the
    particular facts of each case.”

You are never going to be able to avoid the word "inextricably".

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