Last month, we wrote about how the USPTO had stepped in to a brewing fight between copyright lawyers and patent lawyers, saying that it believed that submitting journal articles as part of the patenting process was fair use. Apparently, the copyright lawyers working for the scientific journals disagreed... and the fight is on: the journals have sued a bunch of patent lawyers for making use of articles from the journals in preparing their patent applications. The journals, in their desperate desire to squeeze more cash out of everything, were demanding that patent lawyers get an additional license if they wanted to submit copies of journal articles along with patent applications.

While it's rare that you'll find me agreeing with the patent bar on very much, on this one, I'm on their side. The lawsuit, lead by publisher John Wiley, is kind of crazy. We're not talking about people who are getting copies of the journal for free. These are generally people who have a legitimate subscription to the journals, and are submitting copies of the information as part of the patent process -- as they're required to do by law. This is just yet another attempt by the publishers to get paid for every single possible use, even for those who already have legitimate access. And, of course, these journals don't have the best reputation these days, with their attempts to block open access requirements. While there may be some appeal in making it more difficult to get a patent (something where I believe the bar needs to be much, much, much higher), I don't think this is as reasonable way to do so.

In nearly every way, it seems like submitting such a journal article as part of a patent application process should be seen as fair use. It really does fit the kind of key "spirit" of the fair use rule.