Claiming Copyright in a Legal Document

I was presented with an interesting question today: Can someone claim copyright in a legal document, such as a contract for sale?

My first inclination was to say “no,” based on the idea that a contract is really a compendium of facts (lacking much creativity), and the necessary merger between idea (I want this term in the contract) and expression (here’s the term). But then I thought perhaps one could claim that either the language they used, or the particular arrangement of clauses, could be the basis of creative expression in the document.  In the end, I decided that for what is, essentially, a standard form contract, there would be little (i.e. “thin”) or no protection of the words.

Intrigued, and wanting to know if I was on the right track, I did a little Web surfing. I found two good posts on the subject, one of them being from someone with whom I’ve had correspondence in the past.

Here, at the Invent Blog, Stephen Nipper raises essentially the same question I had. I’m not sure what Stephen concludes, but he does link to a nice explanation and discussion of the issues at AdamsDrafting. Ken Adams appears to reach the same conclusion I did, which is that there’s possible protection, but it would require more novelty than is present in most (almost all?) contracts.

If you have any thoughts on the subject, please let me know. I haven’t been able to find any on-point case law.

InventHelp and IPWatchdog have at it

Regular readers of Gene Quinn’s site, IPWatchdog, know that he is not too fond of invention assistance companies that he feels rip off unsuspecting inventors. He has a special place in his heart for InventHelp, having written about them many times.

In contravention of the usual belief that “there’s no such thing as bad publicity,” InventHelp has apparently decided that they’ve had enough of Mr. Quinn’s publicity. On January 21, 2010, InventHelp sued IPWatchdog, Gene Quinn, and Renee Quinn in the Northern District of New York. In the complaint, InventHelp makes four claims for which they believe relief can be granted: Lanham Act false or misleading descriptions; defamation; trade libel; and tortious interference with contracts.

I have no in-depth knowledge of InventHelp’s services, so I don’t know how meritorious these claims are.  Mr. Quinn, of course, says he will defend this lawsuit vigorously, and implies he already has enough documentary material to defeat these claims. He also requests that if you have relevant information about InventHelp, you contact him here.

Should be interesting to follow.  Best of luck to both parties.

RBC Capital Markets ANDA Litigation Analysis

RBC Capital Markets undertook an exhaustive analysis (PDF, h/t AmLaw Litigation Daily) of pharmaceutical litigation related to abbreviated new drug applications (ANDAs). These cases involve challenges by a generic drug company to the market occupied by an innovator (or brand-name) drug company.

Some interesting bits from the report:  

-Over the last decade, the overall success rate for the generic drug industry is 48% for cases that have gone to trial. However, the success rate increases to 76% when settlements are included. Over half of all cases are settled or dropped.

-The top three courts by volume — NJ, DE and SDNY — accounted for 69% of all decisions. Unfortunately, these courts have a combined success rate of just 36% for generics.

-Patent challenges remain on the rise with a record 65 new first-to-file lawsuits in 2009, up from 51 in the prior year and more than double the number just three years ago.

-The top five judges by volume accounted for 31% of the total decisions. These five judges ruled in favor of generics only 33% of the time. The total success rate, however, including settlements is 75%.

I am impressed with the depth of research that went into this report, and recommend it to everyone for a read. However, I have one minor quibble. Although the report concludes that “while patent challenges by generics are extremely common, winning is not,” I’m not sure that is completely accurate. The authors state that “winning is not” common, but also say that the “success rate” is 76% (including settlements). I think that it is quite possible to consider settlement a “win,” depending on the terms.

Suppose, for example, that the ANDA litigation will cost the generic provider $10 million over a couple years.  Suppose, as well, that the generic provider has a quite strong position on patent invalidity and/or noninfringement. As a result, the generic provider has a strong negotiating position relative to a settlement and may easily gain a financial windfall without a clear “win” in the case.

For example, in a recent case (Medicis v. Teva, over a generic version of Solodyn), the parties settled, but not until after Teva made an at-risk launch of its competitive drug. How much do you suppose Teva profited during the few days the product entered the market? Quite possibly more than the money it spent (and would spend) on litigation. In addition, Teva was cleared of all damages liability for those sales as part of the settlement. Finally, Teva gained the right to enter the market no later than November 2011.  All in all, Teva gained profits, security, and a certain entry into the market at a later date.  Sounds like a win, even if not at trial.

Handicapping Bilski v. Kappos

Pending before the Supreme Court of the United States is the case of Bilski v. Kappos (formerly captioned In re Bilski [PDF]). Oral arguments were held late last fall, and now the patent world is waiting to hear the fate of the Federal Circuit’s “machine or transformation” test for the scope of patentable subject matter under 35 U.S.C. Sec. 101.

Much ink and many electrons have been spilled analyzing the case law supporting (or not) the Federal Circuit’s test. The consensus seems to be that the Federal Circuit’s stringent test will be discarded by the Supremes and that some factor-based test will arise in its place.

We could dive deeply into the analytical waters, parsing the case law to determine Bilski’s chances at the Supreme Court.  But instead, let us stay in the shallow end, where the swimming is easy.  What outcome do we predict for Bilski if we look only to the Federal Circuit’s recent track record at the Supreme Court?

Here are the results of the most recent eight cases to reach the Supreme Court from the Federal Circuit:

• KSR International Inc. v. Teleflex Inc.: Reversed 9-0 on how to establish the obviousness of a patent 
• eBay Inc. v. MercExchange LLC: Reversed 9-0 after holding that there should normally be a grant of an injunction in patent cases 
• Quanta Computer, Inc. v. LG Electronics, Inc.: Reversed 9-0 after holding that patent exhaustion does not apply to method claims 
• Microsoft Corp. v. AT&T Corp.: Reversed 7-1 on the application of 35 USC Sec 271(f) to software 
• Medlmmune, Inc. v. Genentech, Inc.: Reversed 8-1, Supreme Court says that a licensee in good standing can sue for declaratory judgment 
• Illinois Tool Works Inc. v. Independent Ink, Inc.: Vacated 8-0 after holding that a patent is market power per se. 
• Unitherm Food Sys. v. Swift-Eckrich: Reversed 7-2 on application of Rule 50(b) in patent cases [perhaps not the Federal Circuit's fault, since it had to follow Tenth Circuit precedent]
• Merck KGAA v. Integra Lifesciences I, Ltd.: Vacated 9-0 on use of patented compounds in preclinical studies

Based just on these few examples, it looks like the Federal Circuit’s machine-or-transformation test is in trouble at the Supreme Court. On the other hand, rules are made to be broken. Is this the case where the Supreme Court takes a Federal Circuit case to affirm?

Welcome to 37 Thoughts

Welcome to my new blog, and I hope you enjoy reading what you find here.

This blog will focus primarily on intellectual property issues, hitting on the rulings in current cases and adding commentary on current issues in IP.  I called it “37 Thoughts” because I wanted to leave myself open to comment on issues involving patents, copyrights, and trademarks, which are each governed by regulations promulgated in Title 37 of the Code of Federal Regulations (i.e. 37 CFR). The sarcastic side of me will note that the blog’s title might also refer to my desire to have at least 37 valuable and/or interesting thoughts in the course of a year.

My goal for this blog is to provide content that will be thought-provoking and/or informative to readers interested in intellectual property issues.  I also hope to stimulate my own continuing education in intellectual property case law and issues. I will consider this blog a great success if my readers and I gain a better understanding of intellectual property law, and if (sometime in the course of our conversation) we learn something that we didn’t know before.

Sometimes, I may detour into legal issues that are not directly related to intellectual property, but which otherwise interest me. For this, I hope the interested reader will forgive me. As well, I may decide at some point to focus the case law part of this blog on cases arising out of the Pacific Northwest: Washington, Oregon, and Idaho; the knowledgeable reader will be aware that the nationally-directed patent blawgosphere is quite populous. I would also like, on occasion, to profile intellectual property attorneys in the Portland, OR area.

Thanks again for visiting, and I hope you return to find something interesting,

Bryan