My career as a lawyer has involved an ongoing search for simplicity.

This is especially so for the application of intellectual property (IP) law to information technology (IT).

To better serve software, Web and digital media clients I look for frameworks that help explain the rationale for existing IP law for IT. The frameworks also help predict future directions in IP for IT. This helps refine legal strategy for clients.

I feel that if as a lawyer I don't try to simplify then I'm not doing my job properly. This post sets out a framework for the evolution of IP law for IT in the 30 years since about 1977. Along the way I link the story to the dialogue in Fox in Socks by Dr Seuss.

Simply stated, the takeaway from this post is that to win in the commercialisation of their products, players in IT and content licensing markets must select from a wider range of laws, conventions and practices than ever before, eg:

• copyright law,
• patent law,
• trade secret law,
• trade marks law,
  
• Creative Commons,
• open systems, or
• a combination of those regimes, together with the ever-reliable contract law.

Today I was pondering recent developments in patent law. A search for simplicity led me to Fox in Socks. This is a 1965 children's book by Dr. Seuss, the pen name of the American writer Theodore Seuss Geisel (1904-1991) seen in the accompanying US postage stamp.

Fox in Socks has a style which reflects the stylistic simplicity first achieved by Dr Seuss in his 1957 book titled The Cat in the Hat. That book is one of the biggest selling children's books of all time and uses only 236 unique words. The style of both books makes them very engaging and understandable for children as young as two or three.

The characters and story of Fox in Socks can be read as a parable for the evolution of IP for IT over recent decades. I'll first overview the book's tale and then try to support that claim.

In Fox in Socks the character of Fox is the protagonist. He engages another character, Knox, in increasingly complex tongue-twisters. The first of these is "Fox / Socks / Knox / Box". After that Fox's rhymes and sentences get more complex.

Though Knox keeps protesting ("This game makes / my tongue quite lame, sir.") Fox spars on regardless, reaching his opus paragraph which begins with this sentence: "Through three cheese trees / three free fleas flew."

Ultimately Knox fights back with his own tongue-twisters, and wins.

The verbal jousting between Fox and Knox resembles the evolution of IP law for IT. Imagine the following: 

• Imagine Fox represents the innovations of IT over recent decades. Over the period since about the 1970s IT has cleverly woven a web of wonders. It has grown ever more complex and layered, like Fox's tongue-twisters. Some IT breakthroughs (eg TCP/IP and Java) have brought things back to simplicity, but as in law complexity is an ever-present tendency. In business/IP law and especially in IT if you fail to keep up you become dazed, confused and lost in new jargon and paradigm shifts.
• Imagine Knox represents law and IP law's evolving response to IT's innovations in recent decades.

Now with Fox and Knox in mind, here is my snapshot of IP for IT over the last 30 years or so.

Trying to use copyright, a law not designed with software in mind, to protect software is challenging (Knox would say "tongue-twisting")  for lawyers and judges alike, and in several jurisdictions including the US. A law that works brilliantly for the protection of illustrations, story lines, plots, characters and literary themes seems out of place when applied to source code, blocks of code and software algorithms.

While there was legal debate, the decision to use copyright was largely politically-driven in the US and elsewhere. It put software and other IT into an inherited copyright law straightjacket. 

That ill-fitting or inappropriate jacket is one reason why there has been such a noticeable shift in recent years to patent law for IT. Software innovators, owners and financiers who seek to commercialise software have joined to collectively vote in favour of patents to protect IT innovation, especially in the US. On our advice a number of our clients have followed suit. 

Other IP laws continue to play a role, as does the ever-reliable field of contract law, but patents are the growth area within the field of IP. I noted the damages aspect of this in the post titled  Patent infringement damages skyrocket.

Nonetheless there is one reason to regret the development. One of the benefits of copyright law is that provided you don't copy anyone you can expect to face no legal claims. It's an easily applied and simple principle.

In contrast, with patent law if you don't copy you may still be in breach of someone's registered prorietary rights. Therefore, due to patent law it is imperative to conduct patent searches of the relevant field well before product development begins or where feasible even earlier at the product conception and design stages. The need for  patent searches, and the development of legal and IP strategy with respect to them, adds to costs. Patent attorneys and legal knowledge and strategy are essential.

IP for IT has been a long strange trip and there's a long way to go yet. Nobody should launch into developing or investing in an IT business if they do not first conduct a thorough patent and general legal audit to check the legal status of the venture and its products. 

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