• July 24, 2013

Back in November, Minnesota Litigator posted on the copyright infringement case against the preeminent Twin Cities intellectual property firm of Schwegman Lundberg Woessner and I took a stand (albeit with some slight tentativeness (“this would seem to me to be fair use…”).

Notwithstanding my tentative language and notwithstanding the fact that I disclaim any deep knowledge of the law of copyright, I think I made myself quite clear.  So imagine my surprise when I noted recently that the Plaintiff continued to bring this lawsuit after my post.  I am mulling over whether to issue a “show cause” order.

Seriously, I still think there is something paradoxical, some untenable internal tension, something wrong, really, about a claim of copyright infringement in the context of a law firm’s patent prosecution.

The case seems focused on “internal copies.” Apparently all agree the law cannot be that patent prosecutors have a legal obligation to provide the U.S. Patent and Trademark Office with prior art but they have no absolute right to provide it to the patent office and retain a copy for their file without buying it twice at least (one for the USPTO, one for the file).

Who is to decide where “fair use” stops and illicit copying starts?  A law professor?  Well, no, of course not. This is a question for the United States District Court (and, in this case, Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.)).  But the fight these days in the Wiley v. Schwegman case is whether Prof. Douglas Gary Lichtman’s expert opinion on the underlying policy of fair use is admissible evidence to assist the court in its decision.

As to how this question should be answered, I will take a pass. No one listened to me the first time around so what difference would it make?

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