[1] The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which are considered to discourage innovation.
[2] More recently, the concept has been used in Oracle America, Inc. v. Google, Inc.[3] Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. was a landmark case in defining principles that applied to copyright of computer software.
[4] Whelan had developed software for Jaslow to manage the operations of a dental laboratory, and later took it to market under the trade name Dentalab.
[5] He later formed a new company named Dentcom and wrote a program in a different computer language but with similar functionality that he called Dentlab, marketing it as a Dentalab successor.
Whelan won the case and was awarded damages on the basis that Dentlab had substantially similar structure and overall organization.
Inc. in which it had been found that copyright protected organizational and structural details, not just specific lines of source or object code.
[fn 1][8] Sequence, structure and organization (SSO) in this case was defined as "the manner in which the program operates, controls and regulates the computer in receiving, assembling, calculating, retaining, correlating, and producing useful information.
[2] In one case a court found that a defendant had infringed the right to prepare a derivative work when they copied the sequence, structure, and organization of the plaintiff's file formats, screen, reports, and transaction codes, even though different data fields were present.
[17] The distinction between the code's SSO, which is protected by copyright, and the protocol or algorithm, which is patentable, is however extremely difficult to maintain.
[19] In the 1988 Healthcare Affiliated Services, Inc. v. Lippany the court took a position more in line with the idea-expression merger concept, saying that the defendant's choice of scope, variables to be used and other aspects of what its software would do did not constitute the SSO.
Inc. v. Altai Inc. in 1992 the Second Circuit Court of Appeals agreed with the conclusion in Whelan that the structure, sequence and organization of a program might by protected by copyright where appropriate.
[21] However, the court went on to say, "As we have already noted, a computer program's ultimate function or purpose is the composite result of interacting subroutines.
[23] One effect of the Altai case may have been that companies that thought they were protected under Whelan, and had therefore not filed patent applications, now found themselves exposed.
[27] Following the 1986 Broderbund ruling, Lotus Development Corporation sued two competing spreadsheet program vendors for copying the look and feel of their Lotus 1-2-3 spreadsheet program, and Apple Computer sued Microsoft and Hewlett-Packard for copying the Macintosh operating system's use of icons, pull-down menus and a mouse pointing device.
A 1992 federal court finding against Apple largely rejected the idea that copyright law could protect look and feel.
[31] The judge asked both Google and Oracle to provide further detail of their positions over whether an API or a programming language such as Java can be copyrighted.
In reviewing the Oracle v. Google case history, the court noted:...the above summary of the development of the law reveals a trajectory in which enthusiasm for protection of "structure, sequence and organization" peaked in the 1980s, most notably in the Third Circuit’s Whelan decision.