PROBLEM 1-4 Amy and Jon became best friends at college, where they both majored in computer science. They rented an apartment together after graduation. Amy took a job at a software firm; Jon was more interested in business and started working as a consultant. One evening in early 2011, after returning from a business conference in Tokyo, Jon lamented the difficulty of carrying on meaningful conversations with Japanese speakers. The conference had an interpreter who translated large group discussions, but it was too expensive to hire sufficient interpreters for more informal discussions during the conference breaks. Amy recounted a similar frustration when she was trying to talk with a software engineer at a conference in Barcelona. They attempted to communicate using http://www.translate.com, which required them to type what they wanted translated, select the languages, and click a "Translate" button, as shown here: Amy found this far more awkward than conversing through a live interpreter. She wondered if it would be possible to make using computer translation programs more similar to the experience of working with a human. Jon thought this was a terrific idea and suggested they work on the project together on weekends. Amy contacted a software engineer at translate.com to ask if they were working on a verbally controlled version of their program and was told they had abandoned the problem as too difficult. Amy knew there were programs that could convert spoken words into text and vice versa. She wrote code that integrated these with a translation program, and she added new code to mimic a human translator. For example, she wrote code to start translation once there was a sufficient pause in the conversation; to automatically determine the language of an audio signal by passing it through speech-to-text programs in different languages and determining which produced the fewest errors; and to output "I'm sorry, I didn't catch that" when the program could not provide a translation with sufficient accuracy. Amy named her program "Lexie" and added many verbal controls, such as "Lexie, translate between Spanish and English," "Lexie, please start translating," and "Lexie, slow down." Amy regularly tested her program with Jon, who spoke Spanish. She explained to him how she had overcome different programming challenges, though he never reviewed the actual code. Amy worked out the bugs by September 2011, and she thought her program was a significant improvement on translate.com. But she knew that most people would still find it more difficult to carry on a natural conversation with a computer than with a human. She thus embedded her program in a humanoid robot, which gave her an outlet for her longstanding interest in art and design. Her city had a robust robot-related industry, including a robot prototyping workshop where she could make different faces for her robot, and she tried to make the face look friendly and helpful so that people would feel comfortable talking to it. Beginning in January 2012, she and Jon hosted parties at their apartment at which their friends could talk with different prototypes. After extensive testing, Amy settled on a child-like face with large, innocent eyes, as pictured. She also gave her robot spiky blue hair to look both playful and easily identifiable. Amy programmed the robot to move her mouth when the program provided an audio output signal. Amy and Jon were thrilled with Lexie and decided to quit their jobs and try to make her a commercial success. In January 2013, Amy used her savings to create a new firm, Lexie Robotics Co., and she hired Jon as the only other employee. Because they were best friends, they didn't see the need for complicated contracts like nondisclosure agreements. By February, they had created a firm website through which buyers could place orders for Lexie, and they had begun seeking venture funding for their initial round of production. Based on feedback from these funders, in April 2013, Amy filed for a patent on Lexie, with herself as the inventor and the new firm as the assignee. Her application, which she wrote and prosecuted herself, had one claim: A method of automatic language translation comprising: a. determining two languages for translation from a user preferences signal, b. receiving an audio signal representing speech in a first language, c. determining the language of the audio signal, d. converting the audio signal into text, e. translating the text from the first language into the second language, f. converting the translated text into a second audio signal, g. outputting the second audio signal. The specification for Amy's patent application provided detailed flowcharts illustrating the steps of the algorithm, but not the actual source code. The specification also described how the program should be embedded in a humanoid robot to encourage more natural interaction, and it gave the specifications for the Lexie design as well as some alternative three-dimensional models. The examiner initially rejected this application under 102 because the steps seemed identical to those carried out by a human translator. Amy amended her claim to make clear that her invention involved automatic language translation using a robot: A robot-implemented method of automatic language interpretation comprising: a. determining two languages for translation from a user preferences signal provided to a robot, b. receiving an audio signal representing speech in a first language, c. determining the language of the audio signal, d. converting the audio signal into text, e. translating the text from the first language into the second language, f. converting the translated text into a second audio signal, g. outputting the second audio signal while moving the robot's mouth. This claim was allowed in February 2015, and her patent issued. While the patent application was pending, Lexie was already becoming a runaway commercial success. Amy and Jon had sold thousands of units and hired dozens of new employees, and attendees at international conferences had learned to look around for Lexie's distinctive blue hair to get help with translation. Lexie had even appeared on numerous talk shows in different countries. The verbal commands for controlling Lexie were easy to remember, and users found that using Lexie really was almost as natural as having a live human interpreter. In September 2015, Jon had an epiphany about how to make Lexie have even more impact. Even though sales were booming, robots were still both expensive and bulky, so Lexie was really only feasible at venues such as conference sites. What if they made an app version of Lexie so that she could reach millions of people? To his surprise, Amy hated the idea because she was worried the app would destroy demand for their robots. They fought, and Jon quit to pursue his idea on his own. In October 2015, Jon got a grant from a university to create a free cell phone app. He teamed up with another skilled programmer, Kara, and he told her everything he remembered about how Amy created the code underlying Lexie. Based on Jon's memory and the patent disclosure, Kara created a replica of the Lexie program by January 2016. Kara and Jon named their program "Izzie," but they made sure that she would respond to the same verbal commands that users would already be familiar with from Lexie (including Lexie's name, as in "Lexie, slow down"). They decided to give Izzie a nearly identical face with spiky blue hair so that a user could walk up to a stranger with Izzie displayed on the phone, and the stranger would likely understand that the person with the phone spoke another language but that the app would help translate. While Lexie merely opened and closed her mouth, Izzie was far more expressive when she talked, so that she looked even more real. They start marketing Izzie in February 2016 as follows: You are working as a summer associate at an IP boutique, and Amy comes to your firm for advice on how to get Izzie shut down. The partner you are working for relays her situation and gives you the following assignment: Lexie seems like a complicated product that might be protectable with multiple forms of IP, and I'm not sure which are the strongest claims to pursue. Please write me a memo discussing her potential claims under (1) trade secret, (2) patent, (3) copyright, and (4) trademark law. For each area, discuss what additional facts we would need to prove, as well as any significant weak points. At this stage, just focus on the general principles rather than the nuances of the caselaw in any particular jurisdiction. (If the jurisdiction seems outcome-determinative, you can let me knowI think we will have the option of suing in a few different jurisdictions.) Finally, in part (5) of your memo, assess whether it seems likely that Amy will be able to receive an injunction against the Izzie app