Copyright law and MP3 files are still center stage as the industry attempts to bring unauthorized file sharers and peer-to-peer operators to justice. But a spotlight is slowly shifting toward intellec


Copyright law and MP3 files are still center stage as the industry attempts to bring unauthorized file sharers and peer-to-peer operators to justice. But a spotlight is slowly shifting toward intellectual property rights in the devices that play these files.

Singapore-based Creative Technology was awarded a U.S. patent last month -- which it calls "the Zen Patent" -- covering a user interface for such portable media players as the company's Creative Zen and Nomad Jukebox. This interface enables users to efficiently and intuitively navigate and select tracks.

Creative, which filed the application more than four years ago, now claims that many competing MP3 players -- including the iPod -- infringe this patent. The company has yet to file a lawsuit. Even if it does, the patent may be challenged. One way to make such a challenge is to find "prior art" for that interface.

In the United States, a patent can be awarded for any new and useful process, machine, manufacture or composition of matter -- and for any improvement to these inventions. Although European patent law does not protect software, U.S. law does.

Unlike copyright law, which protects even identical works as long as they are original (i.e., not copied from someone else's copyrighted work), patent law only protects inventions that are unique. It basically protects creations not previously invented, used and published. Someone can prove that an invention is not unique by presenting prior art.

"Prior art comes in a lot of shapes and colors," says patent attorney Daniel DeVito with Skadden, Arps, Slate, Meagher & Flom in New York. It may be shown from such printed materials as prior patents, white papers and industry journals. And when it comes to software, some developers do not try to prevent others from using their technology -- but its existence will prevent others from patenting their ideas.

"The software industry grew up as a kind of left-wing group of scientists," DeVito says. "It was all about [the ideas that] software should be free and ideas should be shared. People didn't associate software with patents -- that you should stop people from using it. They want other people to build upon it."

As a result, prior art for software can be difficult to find before a patent is issued. Often ideas and descriptions are sent only to a limited number of people.

For example, a company may put out an RFP (request for a proposal) inviting other companies to create technology to meet the business needs of the requesting company. Typically the proposals are confidential and may lay out patentable ideas. Those ideas will prevent others from obtaining a patent on something that contains even a snippet of it.

"If a person comes up with the same idea on his own later on, that's too bad," DeVito says, "even though he didn't have access to [the earlier idea] and even though he is not aware that someone else also had that idea and relayed it to people through that RFP."

The biggest problem today for software patents, he adds, is that the U.S. Patent Office is understaffed and those examining the applications have a limited amount of time -- usually only a day or two -- to find prior art. They also do not have access to the type of public information that will help them determine the existence of prior art. As a result, it is not unusual for patents to be awarded and then fail to hold up against a challenge.

Whether the Zen Patent is challenged, can withstand a challenge or will force Apple Computer and others to pay damages and future royalties remains to be seen.