Federal Circuit Holds That Software Plaintiff Bears Evidentiary Burden Of Copyrightability Where Defendant's Evidence Shows Some Elements Not Copyrightable

In a case that could have some lasting impact, the Federal Circuit recently affirmed a 2020 ruling by Judge Rodney Gilstrap in the Eastern District of Texas dismissing claims that a competitor infringed non-literal elements of the plaintiff's software. Because defendant World Programming Limited ("WPL") had shown that some elements of plaintiff SAS Institute's ("SAS") software were not copyrightable, Judge Gilstrap found that SAS bore the burden of pointing to specific protectable elements that the jury could compare to the accused software to determine infringement. Because SAS failed to do so, Judge Gilstrap dismissed SAS's claim.

Because the jury is charged with determining whether the defendant copied original elements of the copyrighted work, Judge Gilstrap held an evidentiary "copyrightability" hearing to "filter" out the non-original, non-copyrightable elements of the plaintiff SAS's software. Judge Gilstrap reasoned that filtering out "ideas, facts,