In August 1996, the Federal Court of Appeals for the Eleventh Circuit decided MiTek Holdings, Inc. v. Arce Engineering Co., a case of first impression in that circuit, and held that the menu and submenu command tree structures ("menu structures") of a computer program for the layout of wood trusses could not be copyrighted. In that case, MiTek sued Arce for copyright infringement of several non-literal elements of its computer program. (The non-literal elements of a computer program would include the overall screen display or, as in this case, the menu structures, while the literal elements consist of the program's source and object code.)
The court found that Arce did not commit an act of infringement in using menu structures that were similar to MiTek's, because MiTek's menu structures were not subject to protection under the Copyright Act. Contrary to the decision of the Court of Appeals for the First Circuit in Lotus Development Corporation v. Borland International, Inc., affirmed by a divided United States Supreme Court in early 1996, the Eleventh Circuit did not hold that menu structures were unable to be copyrighted as a matter of law. Rather, the Eleventh Circuit affirmed the district court's finding that the menu structures in this case were equivalent to a process which should be protected, if at all, by a patent. The key to the decision was the fact that the menu structures mimicked the steps a draftsman would follow in designing a wood truss by hand.
The Eleventh Circuit's decision, however, does not leave the creator or owner of a computer program without options for protection. In most instances, many elements of a computer program can be copyrighted, such as the program code and screen display. In addition, more substantive protection can be achieved by obtaining a utility patent on the program's operation or a design patent on the program's visual display.