By Dennis Crouch
American Institute of Physics and John Wiley & Sons v. Schwegman Ludberg (D.Minn)
Publishers John Wiley & Sons and American Institute of Physics have asked the Minnesota District Court for leave to amend and narrow their complaint against the Schwegman law firm. The amendment would drop any allegation that submitting copies of copyright works to the USPTO constitute copyright infringement. The plaintiffs write that the amended complaint
does not allege that this unauthorized copying includes (i) making such copies of a copyrighted work for submission to the PTO as may be required by the rules and regulations of the PTO, (ii) transmitting such copies to the PTO, or (iii) making an archival copy of that work transmitted to the PTO for Defendants' internal file to document what has been transmitted.
To be clear, however, the plaintiffs have not dropped their case, but continue to allege that other copies and transmission do constitute copyright infringement. Further, because Wiley does not have any proof of those other activities, it argues that the now unchallenged submission to the PTO serves as "evidence of broader use and circulation" sufficient to permit the complaint to move forward.
The newly amended complaint thus recites no factual basis other than the fact that Schwegman is a law firm that prosecutes patents and that, because Schwegman submitted copies of certain articles to the USPTO that it must have also made unauthorized copies. The complaint:
14. Upon information and belief, Defendants have engaged in Unauthorized Copying with respect to the copyrighted articles from Plaintiffs' journals, including but limited to the articles identified on Schedule A.
15. Plaintiffs cannot know the full extent of Defendants' Unauthorized Copying without discovery.
The amended complaint also adds a further list of obscure scientific articles that were submitted to the PTO by Schwegman and were allegedly copied internally in an unauthorized manner. The plaintiffs have not yet filed any proposed amendments in the MBHB case.
The USPTO intervened in these cases supporting the law firms. It appears that this amendment is meant to appease the USPTO so that it will fall out of the case – making the defendants look much less sympathetic.
Despite its high-sounding name, the American Institute of Physics (AIP) is basically a publishing house struggling to survive.
Open Access: Depending upon pricing structure, access to a journal such as the Journal of Applied Physics costs as much as $15k per year. Academic authors generally receive no compensation for publication and there is a growing movement amongst academia toward open access journals. Almost all law reviews make their works freely available online. This enforcement project may push the sciences in that direction as well.
Read the Brief: File Attachment: mnd-1190merged.pdf (794 KB)