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770 NON-OBVIOUSNESS PROBLEM 21-1 a.) Our friend Mr. Turning, the software developer who had a tiff with Facebook, is back in your office. He has developed some new software. It proudly bears the legend “Quis Custodiet Ipsos Custodes?” or “who guards the guardians?” It allows system operators, or users, to test the security of a particular online service and to see if its password services are vulnerable to a series of the most common techniques used by hackers, but also to some new ones that Mr. Turning developed himself. In the process, Custodes will generate “test passwords” which the system administrators or legitimate users can use to validate Custodes’ findings, but which the unscrupulous could use to gain unauthorized entry to any vulnerable service. Custodes has indeed spawned a huge reaction; users have been furious to find that their private data was protected only by insecure passwords, content companies (particularly Netflix and Apple’s iTunes) have been furious to find that their material is now accessible and being illegally downloaded in massive quantities, and malicious hackers and the NSA have been furious to find this vulnerability revealed so publicly, since they had been quietly benefitting from it. The release of Custodes has prompted a wave of changes to make password systems more secure. Turning wants your advice on the possibility of patenting some of the innovations that he came up with during the process of development of Custodes. The first thing that Turning wants to patent is a process, or algorithm, called Houdini, that can generate valid passwords far faster than normal “brute force” attacks in which every possible permutation is tried until success is achieved. The algorithm allows one to generalize from the shared characteristics of failed attempts and to “learn” from a very small number of failures, so that an entire class of passwords (e.g. those with initial capital letters) are eliminated based on “statistical hunches” and the user can move on to more promising password types. While this process does not guarantee success (the algorithm’s early “hunch” may be wrong), Houdini has been shown to be, on average, 5 times faster than a simple brute force attack. In addition, Turning wishes to patent the Custodes password-cracking program itself. It automates the process of running the Houdini algorithm and applying it to a defined web service. In your research, you find the following information. • An industry insider tells you of a rumor that a Hungarian mathematician called von Neumann has been privately working on an identical algorithm. The project—which is shrouded in secrecy—was apparently almost entirely complete in 2011, but von Neumann has put it aside because of rapidly proliferating health problems. • A 1993 article in the New Zealand Journal of Epidemiology reveals the possibility of statistically diagnosing underlying diseases that cause symptoms in large populations who then report those symptoms to their doctors. It does so by generalizing from small numbers of failed diagnoses, eliminating entire classes of hypothetical disease causes based on epidemiological “hunches,” and instead focusing on more promising potential diagnoses. The statistical method is similar but not identical to that employed in Houdini. • A 2009 article in the Arizona Journal of Cryptography outlines the possibility of a computer program that “used a variety of statistical and mathematical methods” to test the security of password systems. The methods suggested were not fully described because the authors were concerned about their
‘These Are Not the PHOSITA’s you’ve been looking for. . . .’ 771 possible use for criminal activity. • Russian news reports from 2011 suggest that Russian criminal hackers use techniques that are similar but cruder than Custodes to break into secure financial systems. Because their activities are illegal, their tools are not widely available. Can Turning patent Custodes and Houdini? In particular, are they patentable subject matter? Are they useful? Are they novel? Are they non-obvious? b.) Your boss on the Senate Judiciary Committee wants another report. She likes “efficiency” and she wants to know why we need the novelty requirement if we have the non-obviousness requirement. One of her campaign contributors has been pressuring her on this. She forwarded you his email. It reads, “I mean, if it already exists, then it’s obvious, duh! So everything that is non-novel is, by definition, also obvious. The set of all obvious inventions includes the entire set of non-novel inventions (and a lot more). We can abolish the novelty requirement as unnecessary.” She has asked for you to draft a response listing all the reasons why we have both the non-obviousness and the novelty requirements and the reasons the two categories, while overlapping in part, are different.
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INTELLECTUAL PROPERTY: LAW & THE IN
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Table of Contents INTRODUCTION ....
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TABLE OF CONTENTS iii 5.) 1052(e) .
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TABLE OF CONTENTS v d.) A Two-Part
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TABLE OF CONTENTS vii In re Fisher,
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x INTRODUCTION Basic Themes: Three
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xii INTRODUCTION see the Lotus v. B
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CHAPTER ONE The Theories Behind Int
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The Theories Behind Intellectual Pr
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CHAPTER TWO Intellectual Property &
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Limitations on Congressional Power:
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CHAPTER THREE Intellectual Property
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Intellectual Property & the First A
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108 TRADEMARK: INTRODUCTION right?
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110 TRADEMARK: INTRODUCTION Compari
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112 TRADEMARK: INTRODUCTION the hol
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114 TRADEMARK: INTRODUCTION out of
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116 TRADEMARK: INTRODUCTION PROBLEM
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118 SUBJECT MATTER: REQUIREMENTS FO
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154 GROUNDS FOR REFUSING REGISTRATI
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CHAPTER SEVEN Trademark Infringemen
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Use in Commerce 179 it purchase not
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Use in Commerce 181 associated with
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Use in Commerce 183 engaged in the
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Use in Commerce 185 A. Trademark In
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Likelihood of Confusion 187 Doughne
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Likelihood of Confusion 189 closely
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Likelihood of Confusion 191 appella
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Likelihood of Confusion 193 sophist
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Contributory Infringement 195 meani
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Contributory Infringement 197 Backg
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Contributory Infringement 199 Claim
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Contributory Infringement 201 on th
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Contributory Infringement 203 B. Di
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Contributory Infringement 205 for w
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Contributory Infringement 207 an un
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Contributory Infringement 209 You h
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Contributory Infringement 211 Googl
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214 DEFENSES TO TRADEMARK INFRINGEM
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232 FALSE ADVERTISING, DILUTION &
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272 INTRODUCTION TO COPYRIGHT: THEO
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What does copyright cover? CHAPTER
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What does copyright cover? 299 Imag
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Originality: Independent Creation a
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The Idea-Expression Distinction 319
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Merger of Idea and Expression 323 3
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Merger of Idea and Expression 325 W
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Merger of Idea and Expression 327 b
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Merger of Idea and Expression 329 a
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Merger of Idea and Expression 333 j
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Merger of Idea and Expression 335 A
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Useful Articles 337 PROBLEM 11-2 [W
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Useful Articles 339 if design eleme
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Useful Articles 341 form, the six-i
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Methods of Operation: Introduction
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Fixation (Copyright Meets Software,
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CHAPTER TWELVE Copyright’s “Rea
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Exclusive Rights 383 Shakespeare’
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The Idea/Expression Distinction in
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The Idea/Expression Distinction in
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Copyright Meets Computer Software:
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Copyright in Characters 407 c.) Cop
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Copyright in Characters 409 charact
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A Two-Part Test for Copyright Infri
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“De minimis” Copying 417 puppy
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“De minimis” Copying 419 Newton
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“De minimis” Copying 421 Notes
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CHAPTER THIRTEEN Limitations on Exc
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Fair Use, Technology and Contributo
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Fair Use Meets Technology 465 4.) F
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Fair Use Meets Technology 467 succe
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Fair Use Meets Technology 469 rebut
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Fair Use Meets Technology 471 Compu
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Fair Use Meets Technology 473 Becau
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Fair Use Meets Technology 475 she w
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Fair Use Meets Technology 477 owner
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Fair Use Meets Technology 479 corre
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Fair Use Meets Technology 481 or li
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Fair Use Meets Technology 483 reaso
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Fair Use Meets Technology 485 onlin
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A Fair Use Case-Study: Multiple Cop
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Conclusion 513 annually from Eastla
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CHAPTER FOURTEEN Secondary Liabilit
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The Stakes of Contributory Infringe
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Contributory and Vicarious Infringe
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Inducement Liability 527 power and
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Inducement Liability 529 As the num
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Inducement Liability 531 contributo
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Inducement Liability 533 promoting
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Inducement Liability 535 capability
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Inducement Liability 539 114 Yale L
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Safe Harbors: Section 512, Direct I
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558 ANTI-CIRCUMVENTION: A NEW STATU
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CHAPTER SIXTEEN Copyright & State M
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Introduction 605 (A) any cause of a
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Introduction 607 viewer directly to
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Subject Matter and General Scope: E
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Preemption, Misappropriation & the
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632 PATENTS: HOPES, FEARS, HISTORY
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CHAPTER EIGHTEEN Patentable Subject
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Laws of Nature and Natural Phenomen
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698 REQUIREMENTS FOR PATENT PROTECT
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