Merchant & Gould Succeeds in Establishing Copyrightable Subject Matter within Software Used for Controlling Surface Mining Machines

April 23, 2010

Firm Establishes Copyrightability of Software Used With Programmable Logic Controllers on Behalf of Its Client


Merchant & Gould, an intellectual property law firm, today announced that it successfully established copyright protection over the software that its client, Drives & Controls Services, Inc. (DCS), developed to upgrade surface mining machines. A copy of the Order, issued by the U.S District Court for the District of Wyoming on February 23, 2010 can be found here:  (Click here to view Order)

In the lawsuit, DCS alleged that a former employee had copied its software and used it to solicit business with a customer of DCS. The software code at issue utilized ladder logic programming code installed on a programmable logic controller ("PLC") and the associated human machine interface ("HMI") used by DCS engineers to upgrade surface mining machines, such as walking draglines. The case was settled shortly after the trial began and the Court ruled on the copyrightability of the software at issue. The Court, upon terms of settlement that are confidential, also ordered a permanent injunction.

"This was an extremely important ruling for our client," said Christopher Sorenson, a partner at Merchant & Gould, and lead counsel for DCS in this case. "The Court's findings of copyrightable subject matter as a matter of law, after having carefully considered the briefing submitted by the parties and hearing expert testimony from both sides before the jury was empanelled, provides our client with some well-deserved certainty that the software it develops to upgrade surface mining machines throughout the nation contains the type of creative expression that the copyright laws protect from unauthorized use. For DCS, a service provider to the mining industry, its software and, of course, the talented DCS personnel who developed that software, are DCS's single most important assets."

Drives & Controls Services, Inc. is one of the leading electrical service providers to the surface mining industry in the United States. DCS upgrades surface mining machines, including installing, repairing and servicing electrical drives and controls on walking draglines.

Other attorneys involved for Merchant & Gould were Heather Kliebenstein, Regina Culbert, and Eric Chad. Tad Daly, a partner at Daly, Davidson & Sorenson in Gillette, Wyoming also served as local counsel. The lawsuit was Drives & Controls Services, Inc. v. Electrical Technical Service & Repair, Inc. and Aaron C. Lundberg II, 08-cv-00256.