Analytic dissection is a concept in U.S. copyright law analysis of

computer software Software consists of computer programs that instruct the Execution (computing), execution of a computer. Software also includes design documents and specifications. The history of software is closely tied to the development of digital comput ...

. Analytic dissection is a tool for determining whether a work accused of

copyright infringement Copyright infringement (at times referred to as piracy) is the use of Copyright#Scope, works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the c ...

is substantially similar to a copyright-protected work. In analytic dissection, unprotectable elements of a work are dissected out and discarded before making any comparison of the two works. These unprotectable components include ''idea'' (as contrasted with ''expression''), ''

scènes à faire A ''scène à faire'' ( French for "scene to be made" or "scene that must be done"; plural: ''scènes à faire''; both pronounced ) is a scene in a work of fiction which is almost obligatory for a work in that genre. In the United States, it als ...

'' (conventional elements typical of a genre), material in the

public domain The public domain (PD) consists of all the creative work to which no Exclusive exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly Waiver, waived, or may be inapplicable. Because no one holds ...

, and functional aspects. As the Ninth Circuit explained in the 1988 ''Data East'' case, that such elements are common to two works does not create

substantial similarity Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work w ...

. Rather, infringing similarity must be based on the similarity of what remains after the unprotectable elements are dissected out. Subsequently, in '' Computer Associates International, Inc. v. Altai, Inc.'', the

Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory covers the states of Connecticut, New York, and Vermont, and it has appellate jurisdic ...

applied this conceptual tool in determining whether two computer programs were substantially similar, under the name of the "Abstraction-Filtration-Comparison" test. As the Tenth Circuit concisely explained this test in ''Gates Rubber v. Bando Chemical Industries'':

court should dissect the program according to its varying levels of generality as provided in the abstractions test. Second, poised with this framework, the court should examine each level of abstraction in order to filter out those elements of the program that are unprotectable. Filtration should eliminate from comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scènes à faire material, and other unprotectable elements suggested by the particular facts of the program under examination. Third, the court should then compare the remaining protectable elements with the allegedly infringing program to determine whether the defendants have misappropriated substantial elements of the plaintiff's program.

This legal test has generally "been applied in subsequent opyright lawdecisions, to the extent that it is recognised in the USA, and elsewhere, as the accepted standard." 30 (2000) (collecting authorities).

Parallels in patent law

A conceptually similar approach has been applied at times in US, UK, and European patent law. In '' Neilson v. Harford'', the Exchequer adopted a method of analyzing the patent-eligibility of inventions based on a natural principle or phenomenon of nature, in which the principle is treated as if part of the prior art and the remainder of the invention (i.e., the mechanical implementation of the principle) is evaluated for patentability under the usual tests (novelty, etc.). The US Supreme Court followed this approach in '' O'Reilly v. Morse'' and subsequent decisions including '' Parker v. Flook'' and '' Mayo v. Prometheus''. A similar type of analysis of obviousness or inventive level has been used under the name of the "

point of novelty Novelty is one of the patentability requirements for a patent claim, whose purpose is to prevent issuing patents on known things, i.e. to prevent public knowledge from being taken away from the public domain.: "I. Patentability; C. Novelty; 1. Ge ...

" test, which is suggested by the use of a Jepson claim.

Parallels in patent law

References