01-2273 Dispatch Automation, Inc. v. Richards

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“To decide, as Dispatch Automation says we (or a jury) must, whether a successive version of a computer software product is a merely incremental improvement or a breakthrough would be like determining the exact moment at which day becomes night. The indeterminacy of that moment is the reason the Weather Service defines ‘sunset’ as the moment when the top of the sun’s disk sinks below the horizon from the standpoint of a person standing at ground level. The definition is perfectly arbitrary, but without an arbitrary definition the matter would be indeterminate. And so here. It is doubtful that contracting parties would want to saddle courts with a standard as nebulous as ‘when the sun sets’ to guide decision in the event the parties had a falling out, especially when application of the standard might require a familiarity with computer programming that few judges and jurors have. How for example to decide whether to compare the latest version of a product with the immediately preceding version or with the original version? Compared to the former, it might seem incremental, while compared to the original version it might seem discontinuous, a radical or fundamental change. The first approach would invite the proliferation of meaningless intermediate steps designed to disguise novelty; but the second would ignore the obvious fact that a process of unmistakable, indeed quite gradual, development can have an end point radically different from its beginning, as in the case of the oak and the acorn it grew from. The position for which Dispatch Automation contends is, paradoxically, the minefield that in the usual case leads employers to insist on owning all software developed by their employees.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Posner, J.