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

computer software Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work. At the lowest programming level, executable code consists ...

. 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 works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...

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'') is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle i ...

'' (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 intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...

, and functional aspects. As the

Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

explained in the 1988 ''Data East'' case, that such elements are common to two works does not create substantial similarity. 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 comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...

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 a requirement for a patent claim to be patentable. An invention is not new and therefore not patentable if it was known to the public before the filing date of the patent application, or before its date of priority if the applicant ...

" test, which is suggested by the use of a

Jepson claim This is a list of special types of claims that may be found in a patent or patent application. For explanations about independent and dependent claims and about the different categories of claims, i.e. product or apparatus claims (claims referrin ...

Parallels in patent law

References