# Amicus Curiae Brief — Lotus Development Corp. v. Borland International, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0611%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1191

## Text

28

= - No. 94-2003

~ : IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

LoTuUS DEVELOPMENT CORPORATION,
7 Petitioner,
BORLAND INTERNATIONAL, INC.,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF AMICUS CURIAE OF
INTELLECTUAL PROPERTY OWNERS
IN SUPPORT OF PETITIONER

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C, WAMSLEY *
INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.
Suite 850
Washington, D.C. 20037
(202) 466-2396

Attorneys for Amicus Curiae

* Counsel of Record

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

IN THE
Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-2003

Lotus DEVELOPMENT CORPORATION,

i Petitioner,

BORLAND INTERNATIONAL, INC.,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Intellectual Property Owners (“IPO”), a not-for-profit
national organization founded in 1972 to represent the in-
terests of owners of intellectual property in the United
States, respectfully moves for leave to file the attached
brief amicus curiae in this copyright infringement case.
The consent of the attorney for petitioner has been ob-
tained. The consent of the attorney for respondent was
requested but refused.

Membership in IPO currently includes nearly one
hundred large and mid-size companies and more than
three hundred small businesses, universities, independent
inventors, authors, executives and attorneys who own or
are interested in patents, trademarks, copyrights and other
intellectual property rights. Many of IPO’s members de-
velop computer software, either to compete in the world-
wide software market, to complement the services they
provide their customers, or to support other segments of
their businesses.

Computer software development has become a key part
of the United States economy. As with all copyright in-
dustries, it relies on appropriate levels of copyright pro-
tection for the works it creates. Because the market for
computer programs is nationwide, the industry also relies
on a measure of national uniformity in the application of
copyright law. The First Circuit’s decision below con-
travenes both of these important industry expectations.

The First Circuit has denied copyright protection to
expression in one of the most creative elements of a com-
puter program—the interface between the computer and
the user—because that element performs a useful func-
tion. Even though copyright protection was conferred on
authors of computer programs by Congress, the First
Circuit’s decision threatens to deny that protection to the
expression of any program element that also performs a
useful function.

The First Circuit’s interpretation of Section 102(b) of
the Copyright Act, on which it based its denial of copy-
right protection to the Lotus 1-2-3 user interface, con-
flicts with the interpretation of that provision in other
circuits. This conflict subjects the works of computer
program authors to flatly contradictory legal rules within
a national marketplace. *»

~ This Regis much more than a dispute between the

parties: it is a clash betweef*rwo fundamentally-opposed
views of what protection the Copyright Act provides for
computer software. That is why this case has attracted
such extraordinary attention within the computer industry
—as the ten briefs amicus curiae filed in the First Cir-
cuit attest.

One view embraces the Congress’ decision that com-
puter programs are literary works, to be afforded protec-
tion under copyright law in accordance with the same
principles that apply to all copyrighted works. In this
view, appropriate protection under copyright law fosters
innovative competition in the software industry and ful-

ep ee rw ge mens et ey

fills the Constitutional dictate “to promote the progress
of science and useful arts.” U.S. Const. art. 1, § 8, cl. 8.
IPO holds this view, together with the greater part of the
software industry.

The opposite view rejects Congress’ decision that pro-
grams should be protected under copyright. By attempt-
ing to erect special judicial barriers to protection of com-
puter programs, those expressing this view seek to curtail
the protection that the copyright statute confers. They
do so to foster imitative competition—competition
founded on copying the fruits of others’ innovative
development.

As an association representing some of the leading in-
novators in the software industry, IPO is in a unique
position to bring to the Court's attention the viewpoint
of the major portion of the business sector that is most
affected by the decision below. IPO is in a better position
than the parties to assist the Court in assessing the impor-
tant legal and policy implications of this case for the soft-
ware industry and the copyright system. IPO’s brief
amicus curiae focuses on these considerations. IPO re-
spectfully requests that its motion be granted and that its
brief be considered by the Court in connection with the
petitioner’s request for the grant of a Writ of Certiorari.

Respectfully submitted,

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C. WAMSLEY *
INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.
Suite 850
Washington, D.C. 20037
(202) 466-2396

Attorneys for Amicus Curiae
July 7, 1995 * Counsel of Record

I.

Il.

TABLE OF CONTENTS

THE DECISION BELOW CONFLICTS WITH
DECISIONS OF OTHER CIRCUITS AND
CREATES UNCERTAINTY AS TO COPY-
RIGHT PROTECTION OF COMPUTER PRO-
I dlattisteosceneinlitnenttbesctetinnhinntineninaniaitesesiigpesan

A. The First Circuit’s Holding on Copyright-
ability of User Interfaces Conflicts With
Decisions of Three Other Circuits ......... ilies

B. Applied to Computer Programs, the First
Circuit’s Interpretation of 17 U.S.C. Section
102(b) Conflicts With Decisions of at Least
kg RE EE ne a

C. A Conflict in Rules of Copyrightability
Leaves Program Authors Uncertain of Their
Rights and Discourages Creation of Com-
yA ee

THE DECISION BELOW DENIES COM-
PUTER PROGRAMS THE COPYRIGHT PRO-
TECTION MANDATED BY CONGRESS AND
DIMINISHES THE STATUTORY INCEN-
TIVES TO CREATE THEM ............................

A. The First Circuit Misinterpreted a Key Pro-
vision of the Copyright Act Because It
Failed to Employ Appropriate Means of
Statutory Construction .20 nn.

B. Denying Protection to Expression in Com-
puter Programs Erodes Severely the Incen-
tives Congress Enacted for Their Authors...

(i)

10

11

17

ii
TABLE OF CONTENTS—Continued

C. The First Circuit’s Construction of Section
102(b) Is Such a Significant Departure
From That of the Overwhelming Majority
of Courts of Appeals and District Courts
as to Call for an Exercise of This Court's
a Fk fl ee

GUS cccerecncqrnssettecnennesetctertenencemenrremmnmnnannen

Page

iii

TABLE OF AUTHORITIES
Cases

Apple Computer, Inc. v. Formula Int'l, Inc., 562
F. Supp. 775 (C.D. Cal. 1983), aff'd, 725 F.2d
I I cement

Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir. 1983), cert. dismissed,
RE ERE A ae MRE

Apple Computer, Inc. v. Microsoft Corp., 35 F.3d
1435 (9th Cir. 1994), cert. denied, ——- U.S.
—, 115 S. Ct. 1176 (1995) .................0............

Atari Games Corp. v. Nintendo of America, Inc.,
975 F.2d 882 (Fed. Cir. 1992) ..............................

Atari Games Corp. v. Oman, 888 F.2d 878 (D.C.
a I

Atari, Inc. v. North American Philips Consumer
Electronics Corp., 672 F.2d 607 (7th Cir.), cert.
denied, 459 U.S. 880 (1982) _...........0...00e..

Autoskill, Inc. v. National Educational Support
Systems, Inc., 994 F.2d 1476 (10th Cir.), cert.
denied, U.S. ——, 114 S. Ct. 307 (1993)...

Baker v. Selden, 101 U.S. 99 (1879) 2.000000...

Brown Bag Software v. Symantec Corp., 960 F.2d
1465 (9th Cir.), cert. denied, —— U.S. ——,
I a

Cable/Home Communication Corp. v. Network
Products, Inc., 902 F.2d 829 (11th Cir. 1990).

CCC Information Services, Inc. v. Maclean Hunter
Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994),
petition for cert. filed, 63 U.S.L.W. 3892 (U.S.
pS SERED ee BP

Computer Associates International, Inc. v. “Altai,
Inc., 982 F.2d 693 (2d Cir. 1992) . hie

Engineering Dynamics, Inc. v. Structural Soft-
ware, Inc., 26 F.3d 1335 (5th Cir. 1994), opin-
ion supplemented on denial of rehearing, 46
-» ¥ §F ¥. S Fee

FDIC v. Meyer, 510 U.S. ——, 114 S. Ct. 996
(1994) be SRE CL te eae ee <

Page

17

17

8

6,8

iv

TABLE OF AUTHORITIES—Continued

Page
Gates Rubber Co. v. Bando Chemical Industries,
Ltd., 9 F.3d 823, 834 (10th Cir. 1998) —.............. x
Gustafson v. Alloyd Co., —— U.S. ——, 115 S. Ct.
DE ee ee ee 13
Harper & Row, Publishers v. Nation Enterprises,
SS ESE ae eee See 19
Kelly v. Robinson, 479 U.S. 36 (1986) —.................. 11
Kepner-Tregoe, Inc. v. Leadership Software, Inc.,
12 F.3d 527 (5th Cir.), cert. denied, —— U.S.
comm, UD Gy GR, GD GID cceitectecitetncncctncctiicceresnccin 17

Lotus Development Corp. v. Borland International,

Inc., 49 F.3d 807 (1st Cir.), petition for cert.

filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995)

i SID ilitsiciietsciainiihtiabbininealpichadisatctiatiiatdigtiniiiamisiaid passim
Lotus Development Corp. v. Borland International,

Inc., 788 F. Supp. 78 (D. Mass. 1992), rev'd,

49 F.3d 807 (ist Cir.), petition for cert. filed,

63 U.S.L.W. 3892 (U.S. June 7, 1995) (No.

EEE ae pe a ae earn Se ako eee 6
Lotus Development Corp. v. Paperback Software,

International, 740 F. Supp. 37 (D. Mass. 1990) .. 6
M. Kramer Manufacturing Co. v. Andrews, 783

yo Ff FF * eae Satis 7,17
Mazer v. Stein, 347 U.S. 201 (1954) ........00000000....... 18

Nichols v. Universal Pictures Corp., 45 F.2d 119
(2d Cir. 1930), cert. denied, 282 U.S. 902

I a a x
Robert R. Jones Associates, Ine. v. Nino Homes,

py | f tT: % Faeeereseeeere 17
Toro Co. v. R & R Products Co., 787 F.2d 1208

a ee 17

Whelan Associates, Inc. v. Jaslow Dental Labora-
tory, Inc., 797 F.2d 1222 (3d Cir. 1986), cert.

denied, 479 U.S. 1081 (1987) ..........0000000eee. 17
Constitutional Provision, Statutes and Public Laws

United States Constitution, art. I, § 8, cl. 8 —............. 18

gk EET a ees oe er 4,12, 15

v

TABLE OF AUTHORITIES—Continued

Page
ARES SEES RIES ea ine oe 12, 13, 17
Be IED linsihini dichnleicntctorensertumnniagomnatesiaaneeniastl passim
ICR SERIES re ae 13
Pub. L. No. 96-517, 94 Stat. 3015 (1980) 00000000000... 14

Legislative Materials

Copyright Law Revision: Hearings on H.R. 4847,
H.R. 5680, H.R. 6831 and H.R. 6835 before
Subcomm. No. 3 of the House Comm. on the
Judiciary, 89th Cong., Ist Sess. (1965) ........... 12
Copyright Law Revision: Hearings Pursuant to
S. Res. 37 on S. 597 before the Subcomm. on
Patents, Trademarks, and Copyrights of the
Senate Comm. on the Judiciary, 90th Cong., 1st

By GED. erceenctrccpnnrcencjasenieenencapnmanseccsnenscncesenqnonses 12
H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976),
reprinted in 1976 U.S.C.C.A.N. 5659 2. 10, 13, 17

House Comm. on the Judiciary, Copyright Law
Revision (Comm. Print 1965) (1964 Revision
Bill with Discussions and Comments) ................ 12

Other Authorities n

Final Report of the National Commission on New
Technological Uses of Copyrighted Works
adn ES ARE i LEDS RA OT oO 12

Jane C. Ginsburg, Four Reasons and a Parador:

The Manifest Superiority of Copyright over
Sui Generis Protection of Computer Software,
94 Colum. L. Rev. 2559 (1994) ...... 15

Arthur R. Miller, Copyright Protection for Com-
puter Programs, Databases, and Computer Gen-
erated Works: Is Anything New Since CONTU?,

106 Harv. L. Rev. 977 (1993) . 16
Melville B. Nimmer and David Nimmer, Nimmer
EE RARE SE ee NN IN 5,15

U.S. Dept. of Commerce, U.S. Global Trade Out-
look 1995-2000: Toward the 21st Century
(1995) ...... RE 5 I ENS SES NS OE cL 2,3

vi
TABLE OF AUTHORITIES—Continued

Page
U.S. Dept. of Commerce, U.S. Industrial Outlook
2 eee Ser ae SS ee 2
Webster's Ninth New Collegiate Dictionary
EE ee a ee ee 15

ee

IN THE
Supreme Court of the Uuited States

OcTOBER TERM, 1995

No. 94-2003

Lotus DEVELOPMENT CORPORATION,
. Petitioner,
BORLAND INTERNATIONAL, INC.,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the First Circuit

BRIEF AMICUS CURIAE OF
INTELLECTUAL PROPERTY OWNERS
IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Intellectual Property Owners (“IPO”) files this amicus
curiae brief in support of the petition of Lotus Develop-
ment Corporation (“Lotus”) for a writ of certiorari to
review the ruling of the United States Court of Appeals
for the First Circuit.

IPO is a national organization founded in 1972 and
representing the interests of owners of intellectual prop-
erty in the United States. Membership in IPO currently
includes nearly one hundred large and mid-size companies
and more than three hundred small businesses, universities,
independent inventors, authors, executives and attorneys
who own or are interested in patents, trademarks, copy-
rights and other intellectual property rights. Members of

2

the Board of Directors of the association are listed in the
Appendix to this brief. IPO is a non-profit association
exempt from federal income tax under Internal Revenue
Code § 501(c)(6).

IPO has no interest in either of the parties to this
appeal or in the outcome of this appeal, other than to the
extent that it affects IPO members and the public gen-
erally.’ Its interest is in the issues before the Court, which
are of concern to IPO members, particularly those in the
computer and software industries. Many of IPO’s mem-
bers develop computer software, either to compete in the
worldwide software market, to complement the services
they provide their customers, or to support other seg-
ments of their businesses.

This case presents critical issues concerning the extent
to which copyright protects computer programs. The
computer software industry has long relied on copyright
law and the incentives it provides. Under the regime es-
tablished by Congress that recognizes computer programs
as literary works and accords them full protection under
copyright law, software development has grown into one
of the major American industries. At the same time, the
United States has become the dominant force in the world
software market, supplying approximately 75% of the
nearly $70 biilion worldwide packaged software market
in 1993 and maintaining a positive balance of trade. U.S.
Dept. of Commerce, U.S. Global Trade Outlook 1995-
2000: Toward the 21st Century 134-35 (1995) (“Trade
Outlook”). From 1991 to 1994 the market for packaged
software in the United States increased by nearly 41%,
to $35.6 billion, id., making it one of the fastest growing
sectors in our-national economy. U.S. Dept. of Com-
merce, U.S. Industrial Outlook '94, at 27-1 (1994). Em-
ployment in the software industry has risen every year

1 One of IPO’s members, International Business Machines Cor-
poration, has recently agreed to purchase al) of the outstanding
shares of Lotus, a non-member.

3

since 1988 (the first year for which such data are avail-
able), creating nearly 73,000 jobs over that period.
Trade Outlook, at 134.

ARGUMENT

The central question in this case is whether copyright in
a computer program protects the expression in the pro-
gram’s user interface—i.e., the element of the computer
program that permits the program author to communicate
with the user, and permits the user to communicate with
the computer. At least three courts of appeals have held
that expression in the user interface of a computer pro-
gram is copyrightable.* In the decision below,” the First
Circuit accepted the district court’s finding that the user
interface before it, the menu command hierarchy * of the
Lotus 1-2-3 spreadsheet program, contained expression,
and that other ways of expressing the ideas underlying
the user interface were available. 49 F.3d at 816. The
court concluded that this case involves the defendant’s
“deliberate, literal copying of the Lotus menu command
hierarchy.” /d. at 814. Nonetheless, the court below
found that the Lotus 1-2-3 menu command hierarchy was,
in its entirety, a “method of operation.” For that reason,
it held that Section 102(b) of the Copyright Act, 17
U.S.C. § 102(b), deprived it of protection. 49 F.3d at
815."

2 See infra, pp. 4-6.

% Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir.),
petition for cert. filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995)
(No. 94-2003).

* The Lotus “menu command hierarchy” is the selection of 469
commands and their hierarchical arrangement into more than 50
menus and submenus. 49 F.3d at 809. Together they comprise the
heart of Lotu&é 1-2-3’s user interface.

* 17 U.S.C. § 102(b) provides:

In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system,

4

In the First Circuit’s view, “ ‘method of operation,’ as
that term is used in § 102(b), refers to the means by
which a person operates something, whether it be a car,
a food processor, or a computer.” /d. Since a user inter-
face is a “means by which a person operates . . . a com-
puter,” the court’s reasoning appears to preclude pro-
tection for any user interface.

But the First Circuit’s reasoning has troubling impli-
cations for all elements of computer programs—not just
user interfaces—and, indeed, for computer programs as
a whole. A computer program, defined in the Copyright
Act as “a set of statements or instructions to be used
directly or indirectly in a computer in order to bring
about a certain result,” is a means by which a person
operates a computer. 17 U.S.C. § 101 (emphasis sup-
plied). Virtually all elements of a program are means
of operating some aspect of a computer. The First Cir-
cuit’s construction of Section 102(b) might well preclude
protection for all such elements, even for the literal code
of programs." In his concurring opinion Judge Boudin,
in fact, acknowledges that such a literal reading of Sec-
tion 102(b) “might easily seem to exclude most com-
puter programs from protection.” 49 F.3d at 820 (Bou-
din, J., concurring). That result is clearly at odds with
the statute, with the stated intent of Congress and with
the weight of judicial authority in other circuits.

method of operation, concept, principle, or discovery, regard-
less of the form in which it is described, explained, illustrated,
or embodied in such work.

*The court’s effort to distinguish “computer code” from the
Lotus menu command hierarchy, 49 F.3d at 816, rests on flawed
reasoning. See infra, note 16.

5

I. THE DECISION BELOW CONFLICTS WITH DECI-
SIONS OF OTHER CIRCUITS AND CREATES
UNCERTAINTY AS TO COPYRIGHT PROTECTION
OF COMPUTER PROGRAMS

A. The First Circuit’s Holding on Copyrightability of
User Interfaces Conflicts With Decisions of Three
Other Circuits

The First Circuit’s holding is flatly inconsistent with
decisions on user interfaces of computer programs in other
circuits. Each of the three other courts of appeals that
have considered the issue has found that the user interface
of a computer program is protectible by copyright. Not
one court of appeals has interpreted Section 102(b) of
the Copyright Act to preclude protection for the original
expression contained in a user interface.’

The First Circuit acknowledged that its decision con-
flicts directly with that of the Tenth Circuit in Auto-
skill, Inc. v. National Educational Support Systems, Inc.,
994 F.2d 1476 (10th Cir.), cert. denied, USS. ,
114 S. Ct. 307 (1993). 49 F.3d at 818-19. In Autoskill,
the Tenth Circuit found that aspects of the plaintiff's user
interface could be protected under copyright. 994 F.2d
at 1495 & n.23. The court expressly rejected the defend-

7 We refer, of course, to expression that has not “merged” with
the underlying idea. Expression is deemed to have merged with
the underlying idea when there is only one way available to express
the idea. See generally 3 Melville B. Nimmer and David Nimmer,
Nimmer on Copyright § 13.08(B](3] (1994) (hereinafter, “Nim-
mer”). The court below acknowledged, 49 F.3d at 810-11, 816, that
there were many alternative ways of expressing the ideas in the
Lotus menu command hierarchy (thus ruling out merger), but
found that to be “immaterial” to its analysis. /d. at 816.

By referring to “original expression” we exclude “scénes a faire”
—stock treatments of a given subject—that, if protected at all, are
protected only against wholesale appropriation. See Atari Games
Corp. v. Oman, 888 F.2d 878, 886 (D.C. Cir. 1989) (R.B.
Ginsburg, J.).

6

ant’s contention, based on Section 102(b), that the means
by which a user communicated with the plaintiff's pro-
gram was a “ ‘method’ not protected by copyright.” /d.
at 1495 n.23.

In Apple Computer, Inc. v. Microsoft Corp., 35 F.3d
1435 (9th Cir. 1994), cert. denied, U.S. ——, 115
S. Ct. 1176 (1995), the Ninth Circuit held that the user
interface of the plaintiff's computer program was entitled
to copyright protection, though, in that case, only against
virtually identical copying. /d. at 1439. Since the First
Circuit acknowledged that the defendant below, Borland
International, Inc. (“Borland”) made a virtually identical
copy of the menu command structure of Lotus 1-2-3, 49
F.3d at 810, but denied it any protection, the conflict
between the First and Ninth Circuits is apparent.*

The Fifth Circuit, in Engineering Dynamics, Inc. v.
Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994),
opinion supplemented on denial of rehearing, 46° F.3d
408 (Sth Cir. 1995), held that the entirety of the input
and output formats that comprised the user interface of
the plaintiff's program was protectible under copyright.
26 F.3d at 1343-44. That court followed Judge Keeton’s
holding in Lotus Development Corp. v. Paperback Soft-
ware, international, 740 F. Supp. 37 (D. Mass. 1990),
upon which Judge Keeton based much of his reasoning
in the district court decisions in this case. E.g., Lotus
Dev. Corp. v. Borland Int'l, Inc., 788 F. Supp. 78, 89-90
(D. Mass. 1992), rev'd, 49 F.3d 807 (ist Cir.), peti-
tion for cert. filed, 63 U.S.L.W. 3892 (U.S. June 7,
1995) (No. 94-2003).

*The First Circuit also recognized that its holding conflicted
with what it described as Ninth Circuit dicta in Brown Bag
Software v. Symantec Corp., 960 F.2d 1465 (9th Cir.), cert. denied,
— US. ——, 118 S. Ct. 198 (1992). 49 F.3d at 819 n.14.

7

B. Applied to Computer Programs, the First Circuit's
Interpretation of 17 U.S.C. Section 102(b) Conflicts
With Decisions of at Least Five Other Circuits

By erecting Section 102(b) as a barrier to deny pro-
tection to original expression in computer programs, the
First Circuit has set itself in conflict with all circuits that
have considered the application of that provision to com-
puter software.

In Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir. 1983), vert. dismissed, 464 U.S.
1033 (1984), the Third Circuit rejected a defendant's
claim that Section 102(b) deprives operating system pro-
grams (the programs that control the basic functions of
a computer, such as the storage and retrieval of informa-
tion from a magnetic disk) from copyright protection be-
cause they implement methods, processes, ideas and sys-
tems. /d. at 1251-52.”

In M. Kramer Manufacturing Co. v. Andrews, 783
F.2d 421 (4th Cir. 1986), the Fourth Circuit reversed
the district court’s holding that plaintiff's computer video
game (a type of computer program) was not copyright-
able under Section 102(b). The district court’s premise
had been that plaintiffs work was “a ‘system or manner
of playing a game’ or ‘description of a game’ and was
simply an ‘idea... .’” Jd. at 434. The Fourth Circuit
held the reliance on Section 102(b) to be “unwarranted”
because it failed to recognize “the limited purpose of the
subsection itself as stated in its legislative history,” id.,

*The Third Circuit also concluded that the desire to achieve
compatibility with a competitor's product does not permit distort-
ing the merger doctrine in order to justify a taking of copyrighted
expression. Apple v. Franklin, 714 F.2d at 1253. The First Circuit,
by contrast, posited Borland’s desire to achieve keystroke compati-
bility with Lotus 1-2-3 as a further ground for its decision that
Lotus’ menu command hierar:'iy was unprotectible, justifying
Borland’s wholesale taking. 49 F.3d at 817-18.

simply to restate the dichotomy between idea and ex-
pression. /d. at 434-35.

In holding that “methods of operation are not limited
to mere abstractions,” the decision below conflicts with
the Second Circuit’s decision in Computer Associates In-
ternational, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir.
1992). In Altai, the Second Circuit implemented what it
described as Section 102(b)'s “fundamental principle . . .
that a copyright does not protect an idea, but only the
expression of the idea,” id. at 703, by employing an “ab-
stractions” test as the first step of its infringement analy-
sis."° Id. at 706. Altai applied that test, enunciated by
Learned Hand in Nichols v. Universal Pictures Corp., 45
F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 US.
902 (1931), to separate protectible expression from un-
protectible ideas and other abstractions, for “the pur-
pose of defining the scope of plaintiff's copyright.” Altai,
982 F.2d at 707 (internal quotes and citation omitted).
In contrast to the First Circuit, the Second Circuit did
not employ Section 102(b) as a barrier to deny protec-
tion to expression embodying ideas and other unprotectible
matter. By abstracting, it was able to consider the “core
of protectible material” that was separable from matter
unprotectible under that section.

The First Circuit's conflict with the Second Circuit's
Altai decision places it in conflict with those other cir-
cuits that have adopted some formulation of an abstrac-
tions test. See, e.g., Engineering Dynamics, 26 F.3d at
1342-43; Gates Rubber Co. v. Bando Chem. Indus.. Ltd..
9 F.3d 823, 834 (10th Cir. 1993). See also, Atari Games

'* The court below stated that its “initial inquiry is not whether
the Lotus menu command hierarchy incorporates any expression,”
49 F.3d at 816, but recognized that “the Altai test would contem-
plate this being the initial inquiry.” /d. at 816 n.12. It further
acknowledged its conflict with the Second Circuit by criticizing
Altai’s test because it “may actually be misleading . . . in instruct-
ing courts to abstract the various levels... .” /d. at 815.

-

a A

9

Corp. v. Nintendo of America, Inc., 975 F.2d 832, 839
(Fed. Cir. 1992) (approving the Altai test in dicta).

C. A Conflict in Rules of Copyrightability Leaves
Program Authors Uncertain of Their Rights and
Discourages Creation of Computer Programs

In the wake of the First Circuit’s decision, there is a
profound variation among the circuits in the legal stand-
ards governing copyright protection of computer programs.
The resulting uncertainty will have a significant adverse
impact on the software industry.

The software industry depends on copyright law. In-
novation drives the industry, and copyright law provides
both the necessary incentive for that innovation and the
primary means of protecting the works that result from
it. Copyright lies at the very heart of the creative en-
deavor of software development. And the question of
what is copyrightable and what is not lies at the very heart
of copyright law.

Moreover, the market for software is not regional, but
national (and international). Packaged software such as
Lotus 1-2-3 and Quattro Pro (the programs at issue
here) is advertised and promoted nationally, and is mar-
keted—directly, through mail-order houses, and
chains of retail stores—in every state in the United States.

As a consequence of these two factors, the First Cir-
cuit’s decision subjects the industry’s primary assets to
the uncertainty of flatly contradictory legal rules in the
marketplace. A software developer cannot know whether.
or to what extent, its investments in creative expression
will be protected. Such protection is subject to the
vagaries of forum and venue. All that is certain is that
the question will arise in the lower courts in every case
of alleged copyright infringement involving computer
programs.

Software development is expensive. Billions of research
and development (“R&D”) dollars ride on the disposition

10

of these issues. Developers will not risk such substantial
sums for the time and talent of creative programmers
without assurance of sufficient legal protection for the
fruits of that investment. Yet developers are now threat-
ened with precisely that risk. There is no way of predict-
ing whether a program or any element of a program
will be protected. This uncertainty makes investment of
R&D resources in innovative software development an
unreasonably risky wager, and will likely force some to
invest those resources in other endeavors.

The reverse side of this uncertainty is that software
developers cannot predict where the boundaries of per-
missible copying lie. A program that infringes in Texas
may not infringe in Massachusetts. Uncertainty on such
fundamental matters defeats the goal of a uniform national
copyright law. See H.R. Rep. No. 1476, 94th Cong., 2d
Sess., at 129-30 (1976) (the “House Report”), reprinted
in 1976 U.S.C.C.A.N. 5659, 5745-46 (discussing impor-
tance of the goal of a uniform national copyright law, as
espoused by the Framers of the Constitution).

Moreover, the decision creates uncertainty in an area
of law where decisions in the courts of appeals had been
converging. Departing from this trend toward coherence
and consensus, the First Circuit has unsettled what had ap-
peared to be settled, and created unnecessary uncertainty
about the legal rules that apply to a key national industry.

Il. THE DECISION BELOW DENIES COMPUTER
PROGRAMS THE COPYRIGHT PROTECTION
MANDATED BY CONGRESS AND DIMINISHES
THE STATUTORY INCENTIVES TO CREATE
THEM

In holding that the district court erred by limiting
“Lotus 1-2-3’s ‘method of operation’ to an abstraction,”
49 F.3d at 816, the First Circuit erected Section 102(b)
of the Copyright Act as an initial barrier, denying protec-
tion to certain categories of works, or elements of works,

regardless of their expressive content. The Copyright
Act does not read that way, Comgress did not intend it
to be read that way, and no other court of appeals has
read it that way.

The First Circuit's misreading is a direct result of its
failure te fellow the holdings of this Court and employ
appropriv‘e methods of statutory interpretation. As ap-
plied te cefmputer programs the First Circuit's holding is
not merely wrong: it defeats Congress’ clear mandate that
computer programs be protected under copyright. The
decision departs so substantially from settled copyright
law, from accepted means of Statutory construction, and
from the clearly-stated will of Congress, as to call for
an exercise of this Court’s power of supervision over the
lower Federal Courts.

A. The First Circuit Misinterpreted a Key Provision
of the Copyright Act Because It Failed to Employ
Appropriate Means of Statutory Construction

Without citing any authority for its conclusion, the
court below determined that “ ‘method of operation,’ as
that term is used in § 102(b), refers to the means by
which a person operates something, whether it be a car,
a food processor, or a compuier.” 49 F.3d at 815. Ac-
cording to the court, anything that falls within that defi-
nition is wholly deprived of copyright protection, even to
the extent that it contains creative expression. /d. at
815-19.

But a court should interpret a statutory provision in
light of “the provisions of the whole law, and. . . its
object and policy,” Kelly v. Robinson, 479 US. 36, 43
(1986) (citations and internal quotations omitted), as
revealed by the statutory text and legislative history. The
First Circuit failed utterly to do this. Without so much
as a sideways glance, the First Circuit looked at Section
102(b) in isolation and proffered an interpretation of

12

the provision that undoes what Congress did elsewhere
in the statute."

Congress’ inclusion of a definition of “computer pro-
gram” in Section 101 is, in itself, persuasive evidence of
Congress’ mandate that computer programs be counted
among the “works of authorship” protected under Sec-
tion 102(a). The legislative history of the Copyright Act
confirms that they are.

The Copyright Act of 1976 culminated more than three
decades of consideration and debate by Congress. Con-
gress considered many different viewpoints presented in
testimony, written submissions, and studies. Protection of
computer programs figured prominently in these proceed-
ings,’ particularly after the Copyright Office—the agency
charged with determining that a work sought to be regis-
tered is copyrightable subject matter—began issuing reg-
istrations for claims of copyright in computer programs
in 1964. Final Report of the National Commission on
New Technological Uses of Copyrighted Works, 15
(1978) (“CONTU Final Report”).

"The canon that a court “construe[s] a statutory term in
accordance with its ordinary or natural meaning,” FDIC v. Meyer,
510 U.S. ——., 114 8. Ct. 996, 1001 (1994), should not be applied
to a single phrase in isolation in a way that defeats other provi-
sions of the statute.

2 See, e.g., Copyright Law Revision: Hearings on H.R. 4847,
H.R. 5680, H.R. 6831 and H.R. 6835 before Subcomm. No. 8 of the
House Comm. on the Judiciary, 89th Cong., Ist Sess. 1144-50
(Statement of John F. Banzhaf Il), 1898-99 (letter from Graham
W. McGowan to Hon. Edwin E. Willis, House Judiciary Commit-
tee), 1428, 1443, 1446-48, (statement of Bella L. Linden), 1472
(statement of Howard A. Meyerhoff), 1565 (statement of Fred
S. Siebert) (1965); 5 House Comm. on the Judiciary, Copyright
Law Revision 62-63 (testimony of Morton David Goldberg), 271
(statement of H. R. Mayers) (Comm. Print 1965) (1964 Revision
Bill with Discussions and Comments); Copyright Law Revision:
Hearings Pursuant to S. Res. 37 on S. 597 before the Subcomm. on
Patents, Trademarks, and Copyrights of the Senate Comm. on the
Judiciary, 90th Cong., Ist Sess. 192-201 (1967) (testimony and
statement of Prof. Arthur R. Miller).

13

Still, Congress sought further input and constituted a
panel of experts, the National Commission on New Tech-
nological Uses of Copyrighted Works (“CONTU”), to
study and make recommendations concerning, inter alia,
the proper regime for protecting computer programs. Pub.
L. No. 93-573 (1974). The Copyright Act was enacted
before CONTU’s study was complete. However, the com-
mittee report that Congress prepared when deliberating
on the Copyright Act” states plainly that computer pro-
grams are among the literary works protected by Section
102(a)(1) of the statute:

The term “literary works” does not connote any
criterion of literary merit or qualitative value: it
includes catalogs, directories, and similar factual,
reference, or instructional works and compilations of
data. It also includes computer data bases, and
computer programs to the extent that they incor-
porate authorship in the programmer’s expression of
original ideas, as distinguished from the ideas them-
selves.

House Report, at 54, reprinted in 1976 U.S.C.C.AN. at
5667.

CONTU took testimony and written submissions from
numerous experts in copyright and information technol-
ogy. CONTU Final Report, at 113-14, 121-29. After
consideration and debate, CONTU concluded that copy-
right should protect computer programs to the same de-
gree as, and under the same principles that apply to,
other copyrighted works. CONTU Final Report, at 11-14.
In 1980 Congress adopted CONTU’s recommendations
with immaterial changes—including CONTU’s proposed

18 See Gustafson v. oie Co., —— U.S. ——, 115 S. Ct. 1061,
1072 (1995) (“If legislative history is to be consulted, it is prefer-

able to consult the documents prepared by Congress when delib-
erating.” ).

14

definition of “computer program.” '* Pub. L. No. 96-517,
94 Stat. 3015, 3028 (1980).

Under the First Circuit’s construction of Section 102(b),
however, it is questionable whether any protection re-
mains for computer programs.’ Notwithstanding — the
court of appeals’ unpersuasive attempt to limit the reach
of its holding," its interpretation of Section 102(b) con-
flicts directly with Congress’ intent that computer pro-
grams be protected by copyright.

"As this brief chronology demonstrates, copyright protection
for computer programs is neither an historical accident, nor an
impulsive act that received little attention by the legislators. Copy-
right protection for computer programs is the result of decades
of open debate and careful consideration.

15 See supra, p. 3.

16 The First Circuit’s attempt to limit its holding by distinguish-
ing “computer code” from the Lotus menu command hierarchy is
based on flawed and unpersuasive reasoning. The court stated that
the menu command hierarchy of Lotus 1-2-3 was a method of
operation because “|w|ithout the menu command hierarchy, users
would not be able to access and control, or indeed make use of,
Lotus 1-2-3's functional capabilities.” 49 F.3d at 815 (emphasis
supplied). On the other hand, the code of Lotus 1-2-3 is not a
method of operation because, in order for a competing program
“to offer the same capabilities as Lotus 1-2-3 |a competitor does
not} have to copy Lotus’ underlying code... .” Jd. at 816 (em-
phasis supplied). The court asked a different question regarding
the menu command hierarchy (whether it was needed to operate a
particular program—Lotus 1-2-3) than it asked regarding code
(whether the particular code was needed to offer the same capabili-
ties as Lotus 1-2-3). Had it applied to the user interface the same
standard it applied to the code, the Court of Appeals would have
found the menu command hierarchy copyrightable, since a pro-
gram offering the same capabilities as Lotus 1-2-3 could have a
different menu command hierarchy, as the district court found.
By the same token, had it applied to the program code the same
standard it applied to the user interface, it would have recognized
the flaw in its reasoning. The code of Lotus 1-2-3 is necessary to
operate Lotus 1-2-3, us the code of any program is necessary to
operate that particular program, making the code—under the First
Circuit’s reasoning—an unprotectible method of operation.

. a

15

The phrase “method of operation” is not defined in
the Copyright Act. The court below, presumably adopt-
ing what it viewed as the common use of those words, 49
F.3d at 821 (Boudin, J., concurring), constructed a defi-
nition similar to that adopted by Congress for a “com-
puter program” in Section 101. On its face, that con-
struction must be wrong. It cannot be presumed that
Congress intended to adopt for uncopyrightable matter a
definition that has essentially the same meaning as the
statutory definition of a protectible work of authorship—
namely, a computer program."

But even assuming that the First Circuit’s definition
were defensible, that would not be dispositive of the ques-
tion whether the manner in which a “method of operation”
is expressed is copyrightable. Nothing in Section 102(b)
States or even suggests that expression that is separable
from (i.e., is not merged with) a “method of operation”
is uncopyrightable. Separating a method of operation
from expression is analytically no different from separat-
ing ideas (another category listed in Section 102(b))
from expression."*

The First Circuit not only failed to consider the whole
Statute, but even failed to consider the whole subsection.

7 See 1 Nimmer, at § 2.03[E]; Jane C. Ginsburg, Four Reasons
and a Paradox: The Manifest Superiority of Copyright over Sui
Generis Protection of Computer Software, 94 Colum. L. Rev. 2559,
2570 (1994) (“[S]ince we know that Congress did determine in
1980 to protect computer programs, the terms ‘process,’ ‘system,’
or ‘method of operation’ must not be understood literally.” (foot-
note omitted) ).

'* The fallacy of the First Circuit's construction is illustrated by
substituting “idea” for “method of operation.” “Idea” can be
defined as “a formulated thought or opinion.” Webster's Ninth
New Collegiate Dictionary 597 (1987). Therefore (following the
First Circuit's logic) any element of a work that fits that defini-
tion is unprotectible, no matter how expressed. That interpretation

would, of course, disqualify most writings from copyright protec-
tion.

16

Section 102(b) denies protection to “any idea, procedure,
process, system, method of operation, concept, principle,
or discovery ... .” i7 U.S.C. § 102(b). The presence
of “idea” at the head of this list of unprotectible matter
itself strongly suggests that Congress intended Section
102(b) to restate the “idea expression” dichotomy, first
enunciated by the Court in Baker v. Selden, 101 US.
99 (1879).'’ Absent merger (another principle that owes
its origin to Baker), the idea expression dichotomy does
not deny protection to expression_in a work.” The same
is true of each of the other items listed in Section 1G2(b).

Again, the legislative history of the Copyright Act con-
firms this reading:

Section 102(b) is intended, among other things,
to make clear chat the expression adopted by the
programmer is the copyrightable element in a com-
puter program, and that the actual processes or
methods embodied in the program are not within
the scope of the copyright law.

Section 102(b) in no way enlarges or contracts the

scope of copyright protection under the present law.

Its purpose is to restate, in the context of the new
single Federal system of copyright, that the basic
dichotomy between expression and idea remains
unchanged.

1° The final phrase of Section 102(b) (“regardless of the form in
which it is described, explained, illustrated, or embodied in such
work”) also supports the interpretation of that provision as a
statement of the idea/expression dichotomy. The statutory lan-
guage clearly contemplates that ideas, procedures, processes and
the like are separable from the form in which they are “described,
explained, illustrated, or embodied ... .” Thus a dichotomy exists
between the unprotectible matter and its “form” or expression.

2 See Arthur R. Miller, Copyright Protection for Computer
Programs, Databases, and Computer Generated Works: Is Any-
thing New Since CONTU?, 106 Harv. L. Rev. 977, 986 (1993)
(“Since Baker, courts have reaffirmed repeatedly that functionality
poses no per se bar to copyrightability.”) (the author was a mem-
ber of CONTU who served on its software subcommittee).

nt i et. el i PO

Nee ee ns Bieta sm

nent mae

es a eS

ee ee ee

17

House Report, at 57, 1976 U.S.C.C.A.N. at 5670. See
also id. at 54, 1976 U.S.C.C.A.N. at 5667 (computer
programs are protectible under Section 102(a)(1) “to
the extent that they incorporate authorship in the pro-
grammer’s expression . . . as distinguished from the ideas
themselves.” ).

Implementing Congress’ express statement in the legis-
lative history of the Copyright Act, courts of appeals
have universally found Section 102(b) to be a restate-
ment of the idea expression dichotomy. See, e.g., CCC
Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc.,
44 F.3d 61, 69 & n.12 (2d Cir. 1994), petition for cert.
filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995): Whelan
Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222,
1234 (3d Cir. 1986), cert. denied, 479 US. 1031
(1987); M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d
421, 434 (4th Cir. 1986); Kepner-Tregoe, Inc. v. Leader-
ship Software, Inc., 12 F.3d 527, 533 & n.8& (Sth Cir.),
cert. denied, US. . 11S S. Ct. 82 (1994);
Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d
274, 277 (6th Cir. 1988); Toro Co. v. R & R Prods.
Co., 787 F.2d 1208, 1211-12 (8th Cir. 1986); Apple
Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443
& n.11 (9th Cir. 1994); Autoskill Inc. v. National Educ.
Support Sys., Inc., 994 F.2d 1476, 1495 (10th Cir.
1993); Cable Home Communication Corp. v. Network
Prods., Inc., 902 F.2d 829, 842-43 (11th Cir. 1990).
See also, Atari, Inc. v. North American Philips Consumer
Elecs. Corp., 672 F.2d 607, 615 (7th Cir.) (“The Copy-
right Act of 1976 codifies this idea-expression dichotomy.
en §$ 102(b)”), cert. denied, 459 U.S. 880

B. Denying Protection to Expression in Computer
Programs Erodes Severely the Incentives Congress
Enacted for Their Authors

The Constitution grants Congress the power “To Pro-
mote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive

18

Right to their respective Writings and Discoveries,” U.S.
Const., art. I, § 8, cl. 8. It thus establishes both the un-
derlying goal of copyright law (to promote the progress
of science (knowledge)) and the mechanism for achiev-
ing that goal (granting authors exclusive rights for a lim-
ited period of time).

The Court has confirmed that the public good is served
by providing authors with these exclusive rights as an in-
centive to create works of authorship:

The economic philosophy behind the clause empow-
ering Congress to grant patents and copyrights is
the conviction that encouragement of individual
effort by personal gain is the best way to advance
public welfare through the talents of authors and
inventors in “Science and useful Arts.” Sacrificial
days devoted to such creative activities deserve re-
wards, commensurate with the services rendered.

Mazer v. Stein, 347 U.S. 201, 219 (1954).

The computer software industry relies on these incen-
tives, and they have caused the industry to flourish and
grow. Any fundamental alteration in the balance of these
incentives, as a the decision below, will have a substan-
tial and detrimental effect on the industry.

Software development (including user interface de-
sign)*' requires a substantial investment in creative ex-
pression—the very creativity that the cconomic incentives
in the Copyright Act are designed to protect and nurture.
Eliminating copyright protection for programs or expres-
sive elements of programs undermines those incentives to
innovate.” Even casting substantial doubt on the avail-

*! As the most visible element «£ a computer program, the user
interface is also the most eas:'y }).eiarized. Excluding this im-
portant programming element ¢tim ,.vtection will inevitably lead
to more unauthorized copying.

*2In Apple Computer, Inc. v. Formula Int'l, Inc., 562 F. Supp.
775, 783 (C.D. Cal. 1983), aff'd, 725 F.2d 521 (9th Cir. 1984), the

ee ee

19 ,

ability and extent of such protection stifles progress and
creativity, and disserves the goals of the Copyright Act.”

C. The First Circuit’s Construction of Section 102(b)
Is Such a Significant Departure From That of the
Overwhelming Majority of Courts of Appeals and
District Courts as to Call for an Exercise of This
Court’s Power of Supervision

The First Circuit's approach to Section 102(b) of the
Copyright Act is a substantive and jurisprudential anom-
aly. The Court of Appeals, considering itself to be “navi-
gating in uncharted waters,” 49 F.3d at 813, weighed
anchor and set itself adrift doctrinally. The court failed
to follow the course that Congress charted for the judi-
ciary in the Copyright Act and its legislative history. It
ignored the overwhelming number of other courts that
have recognized Section 102(b) as a restatement of the
idea expression dichotomy. And in so doing it reached

court observed: “Few companies are going to invest the time and
resources to develop new programs if their products can be freely
duplicated by anyone. Such ‘competitors,’ who could undersell the
originator simply because they don’t have its development costs,
would destroy the market which any innovator needs to recoup his
investment.”

*8 This is so despite the First Circuit’s mistaken belief that its
holding would foster progress in the sofeware development indus-
try. 49 F.3d at 817-18. The First Circuit was obliged to abide by
the balance struck by Congress in establishing the scheme of in-
centives for authors. This Court’s admonition to another court
of appeals is appropriate in this instance as well:

We agree with the Court of Appeals that copyright is intended
to increase and not impede the harvest of knowledge. But we
believe the Second Circuit gave insufficient deference to the
scheme established by the Copyright Act for fostering the
original works that provide the seed and substance of this
harvest. The rights conferred by copyright are designed to
assure contributors to the store of knowledge a fair return for
their labors.

Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 545-46
(1985) (citation omitted).

20

erroneous conclusions that subvert the goals of the Copy-
right Act and jeopardize the ability of a critical industry
to continue its significant contributions to our nation’s
economy. -

The issues raised in this case are as ubiquitous as they
are important. The question of copyrightability arises in
all copyright infringement cases, and is central to many.
The substantial degree to which the First Circuit has lost
its way in this case calls for an exercise of the Court's
power of supervision over the federal judiciary. Cf.
Florida v. Rodriguez, 469 U.S. 1, 7 (1984) (Stevens, J.,
dissenting) (“As the Court of last resort in the federal
system, we have supervisory authority and therefore must
occasionally perform a pure error-correcting function in
federal litigation.” ).

CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C. WAMSLEY *
INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.
Suite 850
Washington, D.C. 20037
(202) 466-2396

Attorneys for Amicus Curiae

July 7, 1995 * Counsel of Record

APPENDIX

MEMBERS OF BOARD OF DIRECTORS OF
INTELLECTUAL PROPERTY OWNERS *

Robert L. Andersen
FMC Corporation

Norman L. Balmer
Union Carbide Corporation

Erwin F. Berrier, Jr.
General Electric Company

W. Dexter Brooks
Coca-Cola Company

James L. Fergason
Optical Shields, Inc.

Michael W. Glynn
Ciba

Stephen S. Grace

Dow Chemical Company
Gary L. Griswold

3M

Robert P. Hayter

United Technologies Corp.
Edward P. Heller, II
Seagate Technology, Inc.

Wayne C. Jaeschke
Henkel Corporation

Geoffrey M. Karny
Genetic Therapy, Inc.

John J. Klocko, IIT
E.1. DuPont de Nemours
& Co.

William E. Lambert, III
Rohm & Haas Company

Edward T. Lentz
SmithKline Beecham
Corporation

William F. Marsh
Air Products & Chemicals,
Inc.

Roger L. May
Ford Mot. » Company

John ?. McDonnell
AT&T

Alexander J. McKillop
Mobil Oil Corporation

Robert E. Muir
Caterpillar Inc.

Lita Nelsen
Massachusetts Institute of
Technology

Wallace L. Oliver
Amoco Corporation

Garo A. Partoyan
Mars Incorporated

Harold R. Patton
Medtronic, Inc.

Jacobus C. Rasser
Procter & Gamble

*IPO procedures require approval of positions in briefs by a
three-fourths majority of directors present and voting.

Peter C. Richardson
Pfizer, Inc.

Allen W. Richmond
Phillips Petroleum Company

Melvin J. Scolnick
Pitney Bowes Inc.

Victor Siber
IBM Corporation

Roger S. Smith
Morgan & Finnegan

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0611%3A06. Public record. Not legal advice.