IP Law Daily, COPYRIGHT—E.D. Mich.: The functions of a breathalyzer are a matter for patent law, not copyright, (Oct 13, 2023)

By Matthew Hersh, J.D.

The product’s sequential user interface was largely dictated by external needs and therefore constituted ideas rather than expression.

The user interface for a kiosk-based breathalyzer and blood alcohol level product sent its users through a sequence of different ordered steps that were all but dictated by the external needs of the program and therefore could not qualify for copyright protection, the federal court for Detroit has held. The court, in granting judgment on the pleadings to the maker of a competing breathalyzer technology, emphasized that granting copyright protection to the sequence of functions at issue in the lawsuit would effectively grant the company a patent monopoly over its technology—something that went far beyond the protections offered by copyright law (SnagPod LLC v. Precision Kiosk Technologies, Inc., Borman, P.).

The lawsuit involves a dispute between two companies who develop technologies for kiosk-based blood alcohol testing. SnagPod is a Michigan-based company that, according to its website, has developed “a unique method of testing and reporting individuals’ blood alcohol levels” that is designed especially for probation and parole who monitor parole activities. Minneapolis-based Precision Kiosk Technologies provides, according to its own website, technology that “fully automates alcohol screening, pre-trial services and probation check-ins, and efficiently monitors participants in diversion, treatment, and work-release programs.”

The Michigan company came to believe that its Minnesota competitor copied its technologies, including the functions, formats, and various visual elements of its user interface. The Michigan company sued its competitor for copyright infringement, deceptive trade practices, unjust enrichment, trade dress infringement, and trade dress dilution. After the Michigan company stipulated to dismiss the non-copyright based counts, the Minnesota company moved to dismiss the copyright claims.

Validity of copyright. The court found that that Michigan company did not own a valid copyright in the technology. Registered copyrights are entitled to a presumption of validity if they have been filed within five years of first publication of the underlying work. Here, while the company registered both the source code as well as the audiovisual elements of its user interface with the Copyright Office, it did not do so until 11 years after the technology was first put to use. Thus, the court noted, its copyright would have to be evaluated “without the aid of this presumption.” And without the presumption, the court noted, the copyright in this case would be found invalid.

The copyright was invalid, the court reasoned, because the technology sought to be protected by copyright fell on the wrong side of the “elusive boundary line between idea and expression, between process and non-functional expression.” Where a particular idea can be expressed in only one or a small number of ways, the court noted, the expression and the idea effectively merge—so that there is nothing to protect under copyright law. In the software context, the court observed, this means that “elements of a program dictated by practical realities––e.g., compatibility requirements, computer manufacturer design standards, target industry practices, and standard computer programming practices—may not obtain protection.”

That was precisely what happened with the software program in this case, the court noted. The Michigan company did not allege that the Minnesota company copied any of the actual text from its source code. Rather, the court noted, the copying was limited to the various functions of the user interface, including pages that sequentially welcomed the user, gave the user the opportunity to enter personal info and a user ID, allowed the user to take photos and create fingerprint records, and then ran the user through the steps of alcohol testing. But this sequence of functions was all but dictated by the needs of the program itself, the court noted. “How would an automated breathalyzer kiosk operate without an ‘enter your user ID’ page?,” the court asked. “Each user must have a unique ID or else it would be impossible for the kiosk to accurately record the results of each test.” The court reached similar conclusions with respect to the other pages. With the fingerprint authorization or the photo page, for example, “how could an automated kiosk verify the identities of the users it tests?” And “how could a breathalyzer kiosk function without pages initiating the breathalyzer test and informing its users when the test has been completed?”

Nor was it necessary for the court to consider expert testimony in order to reach this conclusion. To be sure, the court noted, “parsing individual lines of code is beyond its expertise and would likely require expert witnesses.” But no such parsing was required here, the court reasoned, because there was no claim of copying source code. Rather, the Michigan company “claims that [the Minnesota company] copied elements of the [Michigan company’s] kiosk’s outputs: the landing pages, the structure, the input prompts, and the sequence,” the court noted. “These are much simpler claims to analyze.”

At bottom, the court noted, the case was governed by the fundamental difference between patent and copyright law. If the court granted copyright protection to the Michigan company for those elements of the product for which it sought protection, the court noted, it would gain a monopoly on breathalyzer kiosks. “In effect, this would give [the Michigan company] patent protection for breathalyzer kiosks when all they have is a copyright in their [kiosk].”

Substantial similarity. The complaint also failed on a second ground, the court noted—the two interfaces were not substantially similar. A side-by-side comparison of the interfaces of both kiosks, the court noted, showed different coloring in the background and buttons, a different use of logos, and different selections of colored fingerprints as part of their design. “Since the layout, format, and color scheme, are the only arguably expressive and protectable components” of the Michigan company’s kiosk, and “because these components are not substantially similar,” the court noted, the Michigan company had not established copying of any protectible component of the product.

The Case is No. 2:23-cv-10401-PDB-EAS.

Attorneys: Michael Thomas Fluhler (Rocklaw PLLC) for SnagPod LLC. Jeffrey S. Hengeveld (Plunkett & Cooney) for Precision Kiosk Technologies, Inc.

Companies: SnagPod LLC ; Precision Kiosk Technologies, Inc.

Cases: Copyright TechnologyInternet MichiganNews