Techdirt: Copyright Lawyers vs Patent Lawyers Smackdown

by Stephan Kinsella on August 13, 2013

What can one say…?

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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