Kinsella Law

Or so says a patent lawyer friend of mine, referring to Tech firms fight copy-protection bill. This story reports that “A coalition of companies including Apple Computer, Microsoft, Dell Computer, Cisco Systems, Hewlett-Packard and Intel said Thursday that they had joined together to oppose legislation backed by the movie studios that would allow the U.S. government to set antipiracy standards for PCs and consumer-electronics devices.” Good for them!

Lawrence Lessig’s Keynote address to the Open Source Convention (OSCON) 2002 is a truly fascinating and insightful look at the historical evolution of copyright law and how it is increasingly threatening cultural freedom.

Now stifle those yawns! My latest IP-related publication (not counting regular updates to Oceana’s Trademark Practice and Forms or World Online Business Law, for which I’m editor) is Impact of Patent Licensing on Patent Litigation and Patent Office Proceedings, co-authored with Richard T. Redano, published in the January 2003 issue of The Licensing Journal.

Can be dowloaded for free from their website.

From an article in Solid-State Lighting (link2):

According to a story carried by Science, UCSB professor Shuji Nakamura has been accused by US District Court Judge James Fox of lying about Nichia patents. The accusations surfaced in a March 15, 2002 letter to federal prosecutors, made public in the electronic newsletter Internet Patent News Service. The story was picked up by the journal Science (Vol. 296, April 5, 2002, p. 31). The disputed US patents (5306662, 5578839, 5747832, and 5767581) cover Nakamura’s landmark LED and laser diode work done while he worked at Nichia. According to Fox’s letter, statements made by Nakamura, in a court deposition related to the North Carolina State University and Cree Inc., vs. Nichia Corporation and Nichia America Corporation patent dispute, conflict with claims made by Nakamura in the patent applications filed by Nichia. Thus, Fox accuses Nakamura of lying to either the US Patent Office or in his recent depositions regarding Nichia patents. [Copy of Judge Fox’s letter.] Either way, Fox recommends bringing perjury charges against Nakamura.

Nymex Suit Pushes Copyright Envelope explains that Nymex claims it has copyright in its prices–despite the fact that prices are simply exchange ratios–that is, facts–and copyright protects original expressions of ideas, not mere facts.

“Right and Wrong: The copy-right infringement,” by John Bloom, Nov. 22, 2002, National Review Online, makes a decent argument that the Bono copyright law’s extension of copyright terms is unconstutional because this violates the Constitution’s provision that Congress can grant copyright for “limited times”. I’m still doubtul the Supremes will overturn the law, but if they buy reasoning like Bloom’s, maybe they will. Who knows.

It might benefit journalists who write on IP issues to ask an IP attorney to read over their final draft, however. Bloom writes that copyright means this: “Whoever creates something that has never been created before has the exclusive right to copy it. […] It’s not the person who registers it with the Library of Congress. It’s the person who does it first. Just the act of creation makes the right kick in.”

Bloom is quite right that there need be no registration to obtain a copyright; it is granted automatically to the author of an “original work,” the moment the work is “fixed” in a “tangible medium of expression. But he is wrong to imply that “doing it first” is really relevant for purposes of copyright. He seems to be confusing patent law with copyright law. A patent to an invention is awarded only if the inventor applies for it. It is not granted automatically. And, two independent inventors of the same invention cannot both receive a patent on it: the first inventor (with certain technical exceptions) is the one who wins, in case of a dispute.

But nothing in copyright law requires that one be the first author of an original work; the only requirement is that one be an actual author of an original work, and that one did not simply copy it from someone else. In theory, if two people were to independently create the same work, at different times, each has a copyright in it. Now this is extremely unlikely, so the “first” person to create it is usually the only copyright owner. But it is not his being first that matters, but simply that he is a creator of an original work that is fixed in a tangible medium of expression.

Or so says Fred Reed, in a column of the same title in the Washington Times.

Check out Patent Logistics’ neat, simple and FREE USPTO Patent Fetcher. Other patent download tools–some free, some not–can be found here.