Parallel Creation. The Balance of Probabilities and the "Infinite Monkey Theorem" in IP Disputes

In disputes related to the protection of IP rights, defendants often argue that their actions do not constitute a violation of the plaintiff's exclusive rights, since the disputed object was created independently of the plaintiff's object, that is, it is the result of parallel creativity.

The defendants cling to parallel creativity as if to a lifeline, not only to avoid losing the case and not being held liable, but also to retain the ability to use and dispose of the disputed intellectual property and to be recognized as its author.

Parallel creation in copyright and patent protection disputes

In order to understand how the courts evaluate arguments about the creation of objects in the order of parallel creativity, I propose first of all to refer to the explanations of the Russian Supreme Court (Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.04.2019 No. 10 "On the application of Part Four of the Civil Code of the Russian Federation").

According to paragraph 95 of Resolution No. 10, “When considering cases of violation of the exclusive right to a work by using its reworking (subparagraph 9 of paragraph 2 of Article 1270 of the Civil Code of the Russian Federation), in order to satisfy the stated claims, it must be established that one work was created on the basis of another.

The creation of a similar (for example, due to the fact that two authors used the same source information), but creatively independent work does not constitute a violation of the exclusive right of the author of the earlier work. In such a case, both works are independent objects of copyright."

Thus, parallel creativity is possible, but only if it is carried out independently of each other.

The ruling of the Presidium of the IP Court dated 03.06.2016 in case No. SIP-89/2015 stated the conclusion that: “Parallel creativity implies not only the creation of identical or equivalent technical solutions or in the same period of time. Such solutions may also be created in different periods of time if the technical solution created earlier was not made public and the person who created a similar or identical technical solution later had no information about the technical results previously achieved by another person in the relevant field.”

There are many well-known examples in history when different inventions were created by authors independently of each other at approximately the same time. At least, the author who came up with something innovative before the others could not present direct evidence of borrowing to other inventors.

For example, the inventor of the telephone is considered to be Alexander Graham Bell (a scientist of Scottish origin), who received a patent for the first telephone in 1876. However, other scientists also argued about the right to be considered the author of the invention:

• Antonio Meucci (Italian scientist) published an article in an Italian newspaper in New York in 1860, in which he described his invention, which was capable of transmitting sounds through electrical wires.
• Johann Philipp Reis (a German physicist and inventor) demonstrated in 1861 a device that could also transmit musical tones and human speech over wires.
• Elisha Gray (an American engineer) was working on a prototype telephone at the same time as Bell. Representatives of both inventors filed a patent application on the same day – February 14, 1876.

These respected gentlemen worked independently of each other and, as we see, did so in different countries. In the modern world, finding inventors working on the same development but living on different sides of the world does not surprise anyone. With the help of the Internet, authors can familiarize themselves with scientific or technical literature, gain access to patent applications or to the texts of the protection documents themselves.

In the case of copyrighted works, the scope for studying published works is, one might say, completely limitless. Such a variety of publicly available sources of information that surround us in the modern world gives rise to the desire of less creatively gifted authors to borrow from more “prolific” and successful authors the results of their work, both in terms of intellectual property objects and means of individualization.

Parallel creativity in trademark cases

Interestingly, arguments about parallel creativity arise not only in disputes about the protection of copyright and patent rights, but also in cases about the protectability of trademark rights.

For example, the Intellectual Property Court considered case No. SIP-1143/2021, in which the plaintiff demanded that the actions of the defendant, a competitor in registering the trademark “” under Russian Federation Certificate No. 699977, be recognized as an act of unfair competition.

The defendant, trying to defend the legal protection of his trademark, among other things, referred to the fact that this trademark was developed by his employee independently of the plaintiff's designation, and therefore there were no signs of bad faith in his actions. At the same time, the court did not agree with this argument of the defendant, pointing out that the defendant did not provide evidence of parallel creativity of his employee, as a result of which the disputed designation was created, identical to the designation used in civil circulation by his competitor (plaintiff) long before filing an application for registration of the disputed trademark.

In this case, the court took into account that the plaintiff's goods, marked with the disputed designation, had been put into civil circulation for almost 3 years prior to the filing date of the trademark application, and had therefore acquired a certain reputation, which was reflected in the volumes of supplies, which were of industrial scale, in the presented magazine publications in specialized print media devoted to weapons, hunting, shooting sports, and in publications (information) on the Internet, advertising materials, as well as in the facts of promoting the entrepreneur's products under the designation “ЧИСТОGUN” during the Russian sniping competitions.

As indicated above, the independent creation of similar or identical objects by several persons is not excluded, and when assessing arguments about parallel creativity, judicial practice proceeds from the fact that borrowing can be established in different ways, based on:

• direct evidence of the knowledge of the author who created the later work about the original work,
• data on the author's style,
• identity of works,
• coincidences of the layout of elements,
• accommodation facilities,
• the degree of similarity of original techniques,
• coincidence of the mutual arrangement and proportions of elements,
• volume of verbatim matching text,
• based on circumstantial evidence.

The assessment of circumstantial evidence is carried out in cases of litigation based on the standard of proof “balance of probabilities”.

The balance of probabilities

The balance of probabilities involves an analysis, in terms of the factual circumstances, of how likely it is that, for example, the products were created by the defendants independently, without reworking the plaintiff's design.

For example, the IP Court, assessing the legality of the ruling adopted by the appellate court in case No. A41-68274/2022 and rejecting the cassation appellate’s argument that the design of his toys was the result of parallel creativity, in its judicial act pointed out the following circumstances that did not allow the defendant’s arguments to be considered convincing: “As the appellate court noted, minor differences in dimensions do not affect the similarity of the design used by the defendants with the design of the toy developed by the plaintiff; additional indirect evidence of the similarity is the information on the marketplace for the request “similar works” - the toy card contains links to the defendants' products. As can be seen from the contested judicial act, even if we assume that the graphic image on the soft toy is not borrowed, the degree of coincidence of the design solution is such that the probability of independently creating the same design using the graphic image of the caracal cat was justifiably assessed by the court as extremely low. The greater the volume of coincidences, the less likely parallel creativity is and the more likely the person who later creates the design is aware of the previously existing design.

Arguments about parallel creativity arise not only in disputes where everything is quite obvious from the point of view of the average consumer, and borrowing is expressed in the appearance of the product, but also in cases where one cannot do without technical knowledge.

This category of disputes may include cases of infringement of exclusive rights to computer programs, which, as is known, are protected as an object of copyright, consisting of many parts, the combination of which results in a finished product. The protected parts of the program include:

• Source code (also source text) is the text of a computer program in any programming language or markup language that can be read by a person;
• Object code (also executable code) is an executable form of a suitable representation of one or more processes (program text or programming language) that is compiled by a programming system;
• Preparatory materials obtained during the development of the program - for example, an explanatory note containing a diagram of the algorithm or functioning of the program; block diagrams; specifications; documents on the procedure and results of its testing, etc;
• Audiovisual displays (non-literal component of the program) - a sequence of images and/or sounds accompanying the organizational structure of a computer program by displaying them on the monitor screen and the user's dynamics (for example, an interface);

If we turn to legislation, then a computer program is a set of data and commands presented in objective form, intended for the operation of a computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program and the audiovisual displays generated by it (Article 1261 of the Civil Code of the Russian Federation).

Therefore, any computer program has a specific purpose and performs certain functions. The set of data and commands that make up a computer program are directly determined by the goals and functions of the program.

In this case, the similarity of the goals and functions of two computer programs indicates that their operation on a computer or other computer devices allows for a similar result to be obtained and similar commands are executed to obtain it. Therefore, the correspondence (similarity) of the goals and functions of one software to the goals and functions of another software cannot in itself serve as a basis for conclusions about their identity.

For the average person, despite the fact that programs can perform the same functions, the distinguishing feature is usually the “beautiful packaging” – the interface. At the same time, behind different interfaces from the point of view of design, the same “filling” – the source code – can be hidden.

In this regard, the main criterion of identity is the established fact of identity of the source text (source code) of the program.

Court practice

For example, in case No. A40-102447/2020, a dispute was considered over the violation of rights to software (computer program), the plaintiff believed that the defendant, who developed the program for him on the basis of an agreement, used the source code of this program in another product. The examination ordered by the court of first instance showed that there was no borrowing of the source code, and therefore the Arbitration Court of Moscow rejected the claim. The court of appeal ordered a repeat examination, entrusting it to another expert, who used a different methodology in its conduct. Based on the results of the repeat examination, it was established that 1/3 of the defendant's program consists of the source code of the plaintiff's program.

The appellate court concluded that the circumstances of the case and the results of the examination indicate that the defendant used the source code of the plaintiff's program, which was available to him, since the defendant is its developer. After the plaintiff filed a lawsuit against the defendant for violation of exclusive rights, the defendant attempted to "mask" the source code by making non-functional changes, but did not remove the unique comments. The expert concluded that as a result of "unmasking", the plaintiff's program was used by the defendant in a volume of more than 30%.

In this case, it is clear that the appellate court applied the standard of proof "balance of probabilities" and, seeing in the results of the examination that the source text contained unique comments contained in the source text of the plaintiff's program, that the defendant tried to hide "traces of the crime", and also that he had previously had access to the source code, the court reasonably concluded that the defendant had borrowed the source code, which served as the basis for holding him liable.

In light of the study of the approaches of the courts in terms of assessing arguments on parallel creativity, the position reflected in the ruling of the Presidium of the Intellectual Property Court of 29.06.2022 in case No. SIP-250/2017 on invalidating a patent for a utility model due to the indication in it of persons who are not authors and patent holders looks interesting.

This case was considered twice in the court of first instance, whose decisions denied the claim, and was twice reviewed by the court of cassation, which the first time overturned the decision and sent the case for a new trial, and during the repeated consideration of the case in cassation, having overturned the decision of the court of first instance and without sending it for a new trial, satisfied the claim. By the way, the dispute was considered for more than five years.

The first time, when referring the case for a new trial, the Presidium of the IP Court stated: "The court of first instance in this case incorrectly applied the standard of proof "beyond reasonable doubt", characteristic of criminal law, given that this case is being considered in the claim proceedings taking into account the balance of probabilities. Given the fact of coincidence of the set of features contained in the disputed patent and the features contained in the evidence presented by the plaintiffs, the court of first instance, taking into account the absence of evidence of the defendants' creative activity, should have assessed the extent to which not only the features, but also the specific formulations and drawings coincide, and how likely the coincidence is."

During the new consideration of the case, the court of first instance established that the essence of the features of the technical solutions coincided completely, and the description in the disputed patent almost word for word coincided with the content of the Documentation (except for minor editorial changes). At the same time, despite this, the court of first instance repeatedly indicated that there was no direct evidence that the defendants had borrowed the technical solution of the plaintiffs, since there was no evidence that they had received information about the technical solution of the plaintiffs.

As a result, during the re-examination of the case, the court of first instance concluded that “taking into account the circumstances established in the case and the balance of probabilities, the court has no reason to doubt the development of essential features aimed at achieving the technical result provided by the utility model by the persons indicated in the disputed patent...” , which served as the basis for dismissing the claim.

When the case came to the presidium for the second time, the panel of judges decided that there would be no third time in the first instance, and decided to put an end to the dispute themselves, and to “reprimand” the court of first instance, stating the following in its ruling:

• the court of first instance reproduced the instruction of the court of cassation on taking into account the balance of probabilities, but did not understand its content;
• the trial court again applied the standard of proof "beyond reasonable doubt", characteristic of criminal law. The balance of probabilities involves an analysis from the point of view of the factual circumstances of how likely it is that the technical solution was created by the defendants independently, and not borrowed from the plaintiffs;
• the decision of the court of first instance, recognizing parallel creativity, is based on a misunderstanding of probability theory. Indeed, the probability of independently creating the same result exists (even the probability of a random coincidence, as in the infinite monkey theorem), but the degree of this probability depends, among other things, on the volume of the coincidence. The greater the volume of the word-for-word matching text, the less likely parallel creativity is and the more likely the knowledge of the person who later writes the text about the previously existing text is.
• having identified a virtually verbatim match between both the wording of the features and the rather voluminous content of the description, the court of first instance drew a conclusion from this that contradicted the theory of probability and did not correspond to the standard of proof “balance of probabilities” in litigation;
• taking into account that the plaintiff's documentation existed earlier than the application for the disputed utility model was filed (and the defendants did not prove an earlier date of the existence of the defendants' technical solution), the direction of borrowing is obvious from the case materials.

In this regard, the Presidium of the IP Court came to the conclusion that the court of first instance has the right to assess the factual circumstances, but does not have the right to deny the obvious, and, based on the above conclusions, decided to grant the claim.

The "Infinite Monkeys" Theorem

In the above conclusions, the presidium, speaking about probability theory, mentioned the theorem "On infinite monkeys", which states that an abstract monkey, hitting randomly the keys of a typewriter for an unlimited period of time, will sooner or later type any predetermined text. From the point of view of probability theory, scientists believe this is possible: if an infinite number of immortal monkeys are equipped with unbreakable typewriters, then sooner or later one of them will type a meaningful text, for example, Shakespeare's "Hamlet". The probability of this event tends to one as time tends to infinity.

But theories are theories, but in life everything is more trivial. If we see two cars from different manufacturers, and for some reason they are very similar, then this means that either they have the same designer, or the designer of the second car was “inspired” by the design of the first. The main thing is that inspiration is within the framework of the law on the basis of a license agreement.

To sum up my article, I would like to say that parallel creativity certainly does take place. When it comes to simple technical solutions or works, the probability of several people creating something similar increases, and, on the contrary, if we are talking about innovative developments, especially if they are protected as know-how and a limited number of people have access to them, the probability of independently creating two similar objects will be extremely small, so all circumstances should be assessed in aggregate.

At the same time, let us, as the Presidium of the IP Court said, not "deny the obvious" where it exists. For example, in a situation where the plaintiff's products, containing an original, recognizable and sought-after design by consumers, have existed on the market for several years, while similar products of the defendant appeared "yesterday". Such behavior of the defendant (or his representatives), despite the apparent success at the beginning, will ultimately, even if in the "second round" of the trial, lead to the defendant being held liable. Wouldn’t it have been better not to borrow from the start, or to borrow but under an agreement?

P.S.​​​ I do not rule out that soon in legal disputes, in addition to arguments about parallel creativity, we will hear arguments that: “yes, I copied, but I did it unconsciously.” The doctrine of unconscious copying, which exists in the US law, according to which if a person unknowingly copies someone else's work, this is not considered either an infringement of the rights of the author of the original object, nor a case of parallel creation. However, such copying is grounds for exemption from liability.