IP Throwdown: Patent Lawyers Sued For... Copyright Infringement

from the fight-fight-fight dept

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.

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  1. identicon
    Anonymous Coward, 1 Mar 2012 @ 5:40pm


    I just don't understand you. Why do you only mention the copies that were submitted with the patent applications, when the lawsuit CLEARLY includes other copies that were made as well. It's this sort of cherry-picking of facts on your part, while completely ignoring other relevant facts, that makes you impossible to take seriously.

    Look at the complaint: "18. Defendants have infringed certain of the Plaintiffs' Copyrights, including, but not limited to, the registered copyrights in the articles listed on Schedule A by making unauthorized copies of them for internal use, and for distribution outside of Schwegman."

    So right there they are talking about copies that are made for internal use and for distribution elsewhere. Even if the copies used in connection with filing a patent application are fair use, the copies they are making for researching and prosecuting the applications are not.

    In typical Masnickian style, you leave out the inconvenient facts in some lame attempt to slam copyright law. It just gets old, Mike. WTF?

    In fact, if you read the whole complaint, they are actually focusing on the copies other than the ones submitted as part of the patent application. To wit, plaintiffs are complaining of two types of copies that defendants made: "(a) additional copies of the copyrighted works that defendants included or cited in their patent applications to the PTO . . . and (b) copies of plaintiffs' copyrighted works that defendants considered in connection with those applications, but did not ultimately cite or provide to the PTO."

    Of course, you completely twist all of this, leaving out the parts that don't jive with your IP bashing, to make some stupid point that is barely even supported by the complaint.

    I don't get it, Mike. Why are you so incredibly dishonest when it comes to copyright? Part of me is realizing that you can't even help it, you're so completely blinded by your own bias.

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