Copyright Lawyers vs Patent Lawyers Smackdown: And The Winner Is…

from the when's-the-rematch? dept

You may remember a rather wonderful court case from 2012 that pitted copyright lawyers against patent lawyers over the issue of whether submitting journal articles as part of the patenting process was fair use. Well, we now have the judge’s decision, as GigaOm reports:

US Magistrate Judge Jeffrey Keyes sided with the patent lawyers, ruling that the reason they made unlicensed copies of the articles was to comply with the law for submitting applications to the patent office — and not to compete within the market for scientific journals.

As we noted last year, in a surprising move, the USPTO had already thrown its weight behind the idea that copies of scientific articles submitted as part of the patent application were indeed fair use. That left the separate question of whether the patent lawyers’ copies used internally were similarly covered:

“These are not the acts of a ‘chiseler,'” Keyes ruled at the conclusion of a four-part fair-use analysis, noting that the patent lawyers’ use of the work was transformative and did not impinge on the original market for scholarly journals.

The GigaOm story points out that this is good news for fans of fair use, which means it probably won’t go down too well with those who think it’s a solution in search of a problem. Doubtless, that group will be hoping for an appeal….

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Comments on “Copyright Lawyers vs Patent Lawyers Smackdown: And The Winner Is…”

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15 Comments
DannyB (profile) says:

Re: Winners in an IP battle

There are no winners in these battles.
Everyone loses.

There ARE potential winners in this IP battle.

If it is fair use to use journal articles to invalidate patents, we all win. Both on the copyright front and the patent front. In this outcome, everyone wins (except the whiners – see below).

If it is not fair use to use journal articles in this way, then we all lose twofold: (1) it is a blow to fair use, (2) patents might be granted that should not be granted, and/or it is more expensive to invalidate patents that never should have been granted. In this outcome, the whiners win.

While we may or may not be winners in this IP battle, there are WHINERS in every IP battle: the maximalists.

out_of_the_blue says:

I agree: "not the acts of a 'chiseler,'"

“Chiseler” is a synonym for “grifter”, but implies mere cheating with some shoddy yet real product, while grifting such as mega.co.nz does is total theft.

Minion is trumpeting the minor victory that if applying for a patent, you CAN copy entire scientific articles as “fair use”! — I doubt anyone in evil Hollywood cares. — Now, don’t run wild with “fair use”, kids! Does not mean ripping DVDs of recent movies to post on Mega is any more legal than before.


Where arrogance meets ignorance to conspire what they’ll do with someone else’s 100 million dollar movie.

Greevar (profile) says:

Re: I agree: "not the acts of a 'chiseler,'"

If you took this attitude and level of behavior to a forum in person, your poor discourse would get you a slap in the face or kicked out. Be grateful that TechDirt doesn’t ban people. Any other community would have given you the boot for being a negative, disruptive menace. And, for that, you don’t deserve to be here, but you’re lucky Mike is the kind of guy that lets you come here to insult him and his community day-after-day.

You call people that make use of copyrighted works “grifters” and, before that, “thieves” (I do believe that’s called, “special pleading”, a.k.a. “moving the goalpost” and a bit of distinction without a difference). Yet, the reality is, that you and those that think as you do are the real crooks. You draw from the well of common culture to build your “properties” and contribute nothing back to that well for others to build with. So the well that exists becomes stale and over-utilized with nothing available to refresh the supply. You have to be one pompous ass to use shared resources, claim ownership over the transformation of it, and call others “thieves” for doing the same to “your” works. You disgust me you arrogant hypocrite. I wish I had an option to ignore you.

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