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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Filed Under: copyright, fair use, journal articles, patent applications, patents

Project Troglodyte: Trying To Pre-Defuse Possible Patent Trolls In Important Areas

from the interesting-idea dept

Three guys from Finland who have been inspired by the EFF's patent busting project have recently launched a new effort, called Project Troglodyte, which is designed to pre-vet certain patents that they fear have a high likelihood of blocking innovation thanks to trolls.

We want to take the EFF’s idea one step further: we scan for patents that have not YET caused problems, but have potential to do so in the future. We have chosen a few basic criteria:
1. Technologies that will be crucial in the near future.
2. Technologies that are potentially vulnerable to single patents.
3. Technologies that we understand at least somewhat.
4. Sometimes technologies we are just interested in.

We are doing this because we feel strongly about the issue of patent misuse, and want to see innovation that enables a better future. Between us we have quite a lot of experience in creating inventions, protecting them and analyzing patents. We feel that this project is a way to put that experience to good use.

They've already tackled three patents, a cleantech patent (7,739,378), a driverless vehicle one (which is actually just an application, rather than a granted patent) and another driverless vehicle patent (which, bizarrely, is also just an application).

I like the general goal of the effort, but going after applications seems a bit premature based on the goal of the program. Perhaps it will help with some of the new pre-grant review stuff that is making its way into our patent system, but the actual patents will most likely change a lot before they become patents, if they become patents.

Besides, if any patent application is fair game, these guys are barely going to scratch the surface of the problems with the system. At least the EFF focused on patents that actually are a problem. On top of that, part of the real problem with patent trolls is that they take broad patents that no one thinks has anything to do with anything, and suddenly claim that they're being infringed upon in a totally different field. So it's often quite difficult to accurately predict which patents are likely to be troll problems down the road.

While it's great that they want to try to prevent trolling, I'm not sure this will be a particularly effective means of doing so.

Filed Under: patent applications, patent busting, patents, prior art, project troglodyte

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.

Filed Under: copyright, fair use, lawsuit, patent applications, patents
Companies: john wiley