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IP Alert
IP Alert: Law Firm’s Internal Use of Copyrighted Journal Articles Is Fair Use, Says Magistrate

August 1, 2013

On July 30, 2013, a magistrate judge issued a report and recommendation in American Institute of Physics et al. v. Schwegman Lundberg & Woessner. The case concerns a law firm’s internal use of copyrighted journal articles for purposes of submission to the U.S. Patent and Trademark Office (USPTO) in connection with the preparation and prosecution of patent applications.

The plaintiffs, a publisher and publishing house, sued a law firm and alleged that the law firm was liable for copyright infringement. Plaintiffs alleged that the infringing activity included downloading, making internal copies of, and distributing copies of copyrighted journal articles. The law firm conducted these activities in preparation for filing patent applications before the USPTO and in the prosecution of such patent applications. The law firm did not pay the publisher for the articles. 

The law firm moved for summary judgment that its activities did not constitute copyright infringement, but instead constituted “fair use” under the copyright laws. The motion was referred to a magistrate judge for review. 

In his report and recommendation, the magistrate agreed with the law firm and recommended that the court grant summary judgment against the publishers. The magistrate’s report and recommendation now will be considered by the referring judge.

Fitch Even attorneys are monitoring the lawsuit and will report on the disposition of this case. For more information, please contact Fitch Even partner Kendrew H. Colton.

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