INTERNET IP RESEARCH AND PUBLICATION: A SEARCH FOR QUALITY AND GLOBAL COMMUNICATIONS

HTTP://WWW.FRYER.COM FRYER INSTITUTE ON INTELLECTUAL PROPERTY LAW

William T. Fryer, III Professor, University of Baltimore School of Law, Baltimore, Maryland, U.S.A.

Presented at the Annual meeting of ATRIP (International Association for the Advancement of Teaching and Research in Intellectual Property), July 7-9, 1997 - Paris, France

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INTRODUCTION

The Internet has become an important resource, as well as a way for persons and businesses to gain recognition. It offers access to vast amounts of information from around the world.

Information providers utilize the Internet for many reasons. Governments want to give quick access to certain records, and to facilitate their work. Businesses advertise their products and capabilities on this information highway. Individuals want to share their experiences and creative skills. The overall impact of the Internet has been tremendous, and it is growing.

There are many significant uses that an intellectual property (IP) law teacher can make of the Internet. IP information be accessed without charge, such as court opinions and articles. Law professors can provide information on their research projects and articles. An exchange of information between Internet users can be part of this use, with E-mail messages eliminating the usual high cost of communications and providing immediate response.

One main question is whether the Internet has significant content, a quality factor that would attract readers. Many Internet resources are raw data, like statistics on issued patents, without analysis of the information. Researchers are looking for quality Internet information, such as hard to find data and analysis of current developments. Internet providers must have quality material to attract users. The providers must prepare attractive graphical presentations, and organize their information for easy access to accomplish this goal.

IP law teachers have to decide whether it is worth their time to access the Internet for information, as part of their research. In addition, a professor should evaluate whether to be a Internet information provider.

This article shares the author's experience using the Internet as a source of research information on U.S. IP developments. It is written to provide a good beginning for persons who do not have any background on the Internet and want to consider whether to use the Internet. The paper describes how the author's Internet source was set up, and his experience in developing and using this global publication outlet. It also reviews several web sites that have quality IP information content.

There are many important copyright issues on use of Internet material. This article will not address these questions in detail, although it offers important background that may suggest where issues exist, particularly on what may be protected by copyright.

A brief explanation of the Internet will help introduce the terms, techniques and opportunities available from Internet use.

BASIC INTERNET OPERATION

Web sites are the sources of Internet information. Each web site has a separate address (URL), and web sites can differ in many respects. Web sites have a common structure, dictated by computer technology. A home page is the first document seen, usually, when a web site is reached by a person using a computer to access the Internet. The home page can have internal links to other files (pages) created for that web site. Each link initiates the step of communicating the user's computer to a computer having the file corresponding to that address.

By using a home page and links, a web site can integrate several documents (pages) created by the web site owner or found on other web sites. The selection and organization of these web sites can be very creative, presenting information focused on a topic from resources around the world. The preparation process is similar to writing a book.

Internet technology permits access to stored files in a computer connected to the Internet anywhere in the world. The files that are freely available can be viewed, printed out, or download as electronic files. When a computer requires a password to access files on the Internet, a special arrangement is needed with the web site owner. The Internet has been developed to encourage free access to information.

The equipment needed to access the Internet is a typical Personal Computer (PC) that has a modem and a telephone line or other data access communications to an Internet server. The PC must have relatively up-to-date capabilities, including high processing speed, large hard drive storage space and significant random access memory space. The graphical information processed on the Internet makes high capacity and process speed essential. Usually, the Internet server that interacts with the PC is a computer of large capacity connected with other servers around the world, forming the vast information highway. It stores the web site files and handles interaction between the PC and the Internet.

A basic knowledge of how to use a PC is all that is required to comfortably utilize the Internet. Programs are provided by several companies, such as Netscape Company and Microsoft Company, to make access quite easy.

Internet access programs have browsers that search the Internet, based on URL addresses. For example, the author's web site can be access by the following URL address: http://www.fryer.com --.

Another way to find this web site is to enter search terms that may be in the title or description of the web site, such as "fryer institute for intellectual property law". With this search, the browser will come up with several web sites using these words, but the first one on the list should be the desired site. Once a web site is located the URL can be saved as a bookmark for a quick return to that site.

Each web site has a unique domain name as a part of its URL. For example. in the author's web site address the domain name is "fryer.com". The registration of these names by a private company working with the Internet management creates several interesting issues. The possible domain name conflict with trademarks and tradenames is a subject worth exploring in an IP course.

CREATION OF A WEB SITE

The following brief description of the process used to create a web site will help to evaluate the potential and limitations for the Internet. The author's experience in preparing his web site will be described. It took time to master the techniques and programs involved when this site was prepared, but new programs and instruction materials have made the process fairly easy now.

The program Netscape 3.0, web site editor, was used to created the web site files. An Internet file has special codes that allow the browsers to handle the transmission and review. In general, these codes and files are identified with the terms HTML or HTM, to distinguish them from word processing files.

Development of the author's web site started with preparation of the home page. The home page is the first accessed file on the web site, usually, although each file on a web site has its own address and it can be accessed separately. A link can be inserted in the home page to connect with each of the files on the web site. In this way a book like structure can be achieved, with movement back and forth on the web site, like turning pages or moving to different book chapters.

The next development step was to add links to files at other web sites. A link included the URL of desired file. This step incorporated the work of others into the content of the web site and raised interesting questions of the right to access and utilize these external files, a topic discussed further below. At the present time it is common practice to utilize these links.

Within each file were links to move the reader to other files and, usually, to go back to the home page that was the center piece of the web site.

When the web site files were prepared in HTML format and the links set up, the next step was to place these file on the Internet server. Space was purchased on the Internet server to store these files and allow room for expansion. The step of sending these files to the server was facilitated by a File Transfer Program (FTP). A relatively simply operation accomplished this process. The server had a connection to the Internet and the server company arranged for Internet access to the web site.

An example of the web site development steps mentioned above will be given using the author's web site. The word processing program WordPerfect 6.1 was used to create a file with the home page text. The file was imported into the Netscape editor, using the copy and paste features of the WordPerfect program.

The Netscape Editor automatically placed the necessary HTML codes in the file for proper handling on the Internet. The home page text included a title and a brief description of the web site's purpose. The design of these elements is one of the most important steps in preparing a web site. It is the title by which the web site will be known. The title and description are what will be searched by browsers, to locate the web site. They are short and contain key works that are important to recognizing the web site's purpose and content.

In the author's web site, each separate topic was listed on the home page. Within each description was a link (highlighted) to allow a person to go immediately to that file. Each topic file had one or more links to other files on the web site. For example a file with conditions on use of the web site was provided. This file was mentioned briefly in the text of the home page, with a link to it. The conditions file was linked to each web site file, so readers would be able to access it from any file on the web site. This step helped assure that the conditions governing use of the web site would be read. Also, each web site file was linked back to the home page, so a reader could move to other topics after going back to the home page. Other internal links, directly to a relevant page were provided.

There were links to files in other web sites, to add valuable content on a topic. A lot of effort was involved in locating these files. For example, in the author's file that described the current status of the Hague Agreement for the International Deposit of Industrial Designs, a link was provided to a World Intellectual Property Organization (WIPO) web site file on the current treaty operation.

Once the HTML files were finished, with all the links, these files were transmitted to the Internet server computer space. The file transfer program used was CuteFTP, available at URL: "http://www.cuteftp.com", for a small fee as shareware. A common way of exchanging programs is to make them available by downloading from the Internet, and if they are found useful a small fee is paid, hence the name shareware is used for this process.

These steps resulted in the author's web site being accessible by anyone who had an Internet connection. The URL address, "http://www.fryer.com ", was entered in the browser, and the web site home page came up on the PC screen. The user could review each topic on the web site using the links, moving around from file-to-file. If a paper copy of a file was needed, it could be made using the computer print function. Also, the file could be downloaded, in case the user wanted an electronic copy.

There is tremendous versatility in using a web site and the internet in presenting topics and organizing material created by a web site author. Also, the web site author has the opportunity to incorporate material from other web sites. The right to incorporate the works of other authors is a very important topic that involves basic national and international issues of copyright and other laws.

THE TEST FOR QUALITY

What is quality information on the Internet is a debated topic. Some web sites provide important raw data, like statistics on patents issued. Other sites may use these statistics to illustrate trends with graphs or explain the reasons for the trends. A web site can have a file with the raw data and another file analyzing the data. Each of these information sources can be valuable to researchers and accessed separately for use on other web sites.

Quality identification on the Internet is not the same as the standard that is applied to determine copyright protected subject matter, i.e., whether there is original material. A fundamental concept of U.S. copyright law, as defined in the U.S. Supreme Court Feist case is that there must be more than mere effort in collecting the information to achieve protectability. A minimum level of originality is needed, based on the selection, arrangement or explanation of the material to have copyright protected subject matter.

Perhaps the most important feature of a quality web site is to focus on a topic and provide the most current information available. Web sites with too wide a range of information will be unmanageable for users. Collecting and presenting the information from sources can be valuable steps. Locating relevant information on the Internet on a specific topic may be one of the most important features of a quality web site. This fact suggests that the most useful web sites for intellectual property law will be ones that provide information on narrowly defined topics. Some of the information will be prepared by the web site author, and other information will be collected on the internet, presenting it in an effective manner and with analysis.

A web site offers several ways to develop quality features. The visual presentation can be one form of important content. Color combinations and graphic designs enhance the appearance and readability of the home page, to organize the web site topics. The viewer's ability to move back and forth, between files in the web site and external web site files, can be a major enhancement of a web site.

A web site can take on the character of a printed article or book. The site can have an extensive analysis of material provided in files created for that web site or from other web sites. The Internet allows external web site information to be selectively introduced in a web site and analyzed progressively, as in an article. This feature represents one of the highest content qualities that can be found on a web site. For example, an article on the web site can identify a case, analyze it, and provide links to other web site files with the full case text, or a summary of the case, or an article by a different author analyzing the case.

A few observations on the relation of quality and copyright subject matter will help identify the goals for web site content. Copyright originality, under the U.S. Supreme Court Feist decision looks for a minimum level of individual expression of the author. A web site has a lot of opportunity for that type of subject matter. The graphic design is one of the easiest aspects of a web site to identify as copyright protected, unless it a common form or only shows a basic color background.

The original text prepared for a web site should be protected by copyright to the same extent as the contents of a book are protected. The selection and arrangement of information within the web site is an organization that is unique to the site. It should be protectable by copyright in most situations. Individual files on the web site may not be as easy to review for copyright subject matter. Since an entire file is accessed when linked, there usually is some material that reaches the level of originality for copyright protection. U.S. government documents are not copyright protected, an a copyright may have expired. Ideas and facts will not be protected by copyright.

This brief introduction of web site quality and copyright protection illustrates several important points. First, there is a need to add quality to a web site, to make it most effective. The narrow focus of a web site with current information and perceptive analysis will make a web site outstanding. The other main point is that a significant part of most web sites will be protected by copyright.

Merely viewing a web site, or linking to another web site file, may not be copyright infringement. Incorporating a web site file into another web site, as a part of a organized presentation on a topic, may create questions of whether this step is equivalent to adding a chapter or several pages from one book into another book. As a web site is viewed as a whole, the use of copyrighted material may not fall with the fair use exception for limited exclusion from U.S. copyright protection. This interpretation would seriously limit the usefulness of the Internet as an organizer of information and providing quality web sites. On the other hand, the rights of copyright owners require some restrictions on unlimited use of materials on the Internet.

The important issues of copyright protection and what can be incorporated into a web site will not be discussed further. It is hoped that the background provided is useful in analyzing them. This paper turns to a review of selected web sites now available on the Internet and useful for U.S. IP research, with special attention to the identification of quality content.

SELECTED INTERNET IP RESOURCES

The following web sites illustrate a variety of approaches to web site design and contain important IP research material. Their URL addresses are given, for the readers to check them out and make their own determinations.

American Bar Association,Section of Intellectual Property Law URL:http://www.abanet.org/intelprop/home.html Content: Status report on selected IP pending legislation; Summary of changes in amended pending legislation; Statement on the PTO Fee and Funding Crisis.

American Intellectual Property Law Association URL: http://www.aipla.org/ Content: Committee reports on many aspects of IP law; Testimony in behalf of the organization concerning U.S. IP legislation and other matters; Text of selected pending IP legislation; Survey on Doctrine of Equivalents.

Emory School of Law URL: http://www.law.emory.edu/FEDCTS/ Content: Decisions of the Federal Courts of Appeal; U.S. Supreme Court decisions.

Findlaw URL: http://www.findlaw.com/01topics/23intellectprop/index.html Content: Extensive list of web sites on IP law; IP Journals and articles, with full text or summaries.

Fish & Richardson URL: http://www.fr.com/working/home.html Content: Summary of selected Federal Circuit, Court of Appeals cases, 1992 and after.

Fryer Institute on Intellectual Property Law URL: http://www.fryer.com Content: Report on revision of the Hague Agreement for the International Deposit of Industrial Designs; How to obtain a copy of a U.S Design Patent on the Internet; Newsletter on Industrial Design Protection; Special Interest Web Sites on Industrial Design Protection

IBM Patent Server URL: http://patent.womplex.ibm.com/ Content: Text of U.S. patents from January 5, 1971 on, updated regularly; Links, in a convenient format, to background patents on new patent; Patent document images, including drawings.

Kuesterlaw URL: http://www.kuesterlaw.com Content: U.S. IP legislation, organized to show current status and background information; Selected cases of interest to computer IP law; extensive list of other IP web sites.

U.S. Patent and Trademark Office URL: http:www.uspto.gov/web/menu/menu4.html Content: Latest revision of the Manual of Patent Examining Procedure, 6th Edition, Rev. 2, for FTP; Information on patent fees; PTO forms and documents.

A LOOK AT WEB SITE QUALITY

The above listed web sites have several high quality features and represent a wide range of techniques for presenting information on the Internet. Each of these web sites will be analyzed briefly.

Many web sites have visual displays that make an effective impression. Perhaps the Kuesterlaw site is the best example of a striking home page visual image. The U.S. Patent and Trademark Office (PTO) home page has an attractive, patriotic appearance.

Web site organization is particularly important, to provide easy access. Some web sites arrange the information in a very useful fashion, such as the Kuesterlaw site that organizes in separate files key information on IP pending legislation features. The status of legislation and Federal Register references are separately grouped. The Kuesterlaw site is one of the most popular for IP research. It has been given several awards for high quality content. It includes selected court decision of importance to the Internet

The Emory School of Law site has recent decisions of the Federal Appellate Courts divided according to the circuit. The files on each circuit are found in computers around the U.S., so the web site links these files, providing a convenient map with the location of the circuits. Clicking on the map location of a circuit links the user to the web site containing that circuit's cases. The map link combination is a high quality feature.

Another resource link on the Emory site is the Cornell University web site containing extensive U.S. Supreme Court material. Recent cases decided by the Federal Circuit, Court of Appeals, can be accessed from a link on the Emory site. The Federal Circuit has exclusive appellate jurisdiction on patent law issues.

A different approach to presenting Federal Circuit, Court of Appeals, decisions is found on the Fish & Richardson law firm site. Its unique feature is that the firm prepares a summary of selected decisions.

The Fish & Richardson site is a good example of a relatively new viewing format. Activating a link to another site from its home page does not change the browser URL to the linked site. Instead, a window comes up that leaves the user at the Fish & Richardson site and allows the linked site to be viewed. In this format, the initial web site retains control, and a user is more likely to continue to explore its features. The linked sites are used to complete the web site, like chapters copied from another book. This web site arrangement has serious impact on how another web site's file is used. It suggests that copyrighted materials from other sites are forming part of an unauthorized compilation. An answer whether this format is a violation of U.S. copyright law should be coming in the near future. The Findlaw site has extensive IP resources. These materials are on other web sites, linked using well organized displays of terms that identify the resource. In most instances, there is no analysis of the material provided by this web site. The location of these sources and providing the links on the home page would take considerable time. The information is very broadly based, leaving it to the user to find the material relevant to a specific topic.

Current information on projects and new developments at Patent Offices around the world can be found on the Internet. For example, the U.S. Patent and Trademark Office (PTO) site can be very helpful in keeping up with current developments and locating important documents. Most of the information on this web site is not protected by copyright, because it is prepared by government employees.

PTO forms used in the filing of documents can be downloaded from this site, along with some of the useful PTO documents, like the Manual of Patent Examining Procedures. This site has the transcript of oral testimony at some PTO hearings, as well as copies of submitted printed statements. The testimony and statements are the type of documents where copyright protection should apply, within the limits of fair use. These documents can be very valuable in researching a topic, and they are not otherwise accessible except by visiting the PTO to view the records.

A newsletter is found on the Fryer site. This web site has a very narrow focus, devoted primarily to industrial design protection, both national and international laws and practice. The newsletter has analysis of current developments and presents information on proposed legislative and procedural changes. The Internet gives this newsletter worldwide circulation, with no publisher or printer or mailing company needed. The newsletter can be freely circulated, by printing it out or downloading the electronic file.

The Fryer web site includes a file that reports the status of the work on revision of the Hague Agreement for the International Deposit of Industrial Designs. This information is kept current. It is one of the few places in the world to obtain a publicly available analysis of the progress being made on this project. The site offers a way to distribute on a global basis this important information.

Perhaps one of the most exciting web sites for some IP researchers is the IBM Patent Server. This site contains a special format to provide key information on U.S. patents, with links to patents that were part of the background for a new patent. A paper copy of the patents, including design patents, can be printed from this web site, or the patent document image file can be downloaded. A caution about use of this site is that it takes a significant amount of time to retrieve a patent document. This interval is partially dependent on the capability of the PC used.

The American Intellectual Property Law Association (AIPLA) site is a valuable resource of current information on what IP attorneys are studying and their evaluation of current developments. The site is noted for being kept up to date. Often new proposals and pending legislation are discussed extensively in the AIPLA committees, and their reports, available at this site, are very helpful in researching a topic. Only the most current committee report is on the site. Earlier reports are found in the printed AIPLA Bulletin.

The American Bar Association, Section of Intellectual Property Law (ABA-Section of IPL) web site has several special items that help understand U.S. IP law developments. A Senate staff summary of changes in a key pending bill is included. Another valuable item is the ABA-Section of IPL position on the crisis concerning withholding of funds from the PTO.

CONCLUSIONS

This brief review of the Internet illustrates the tremendous opportunities it provides now for IP research and publication, and the potential for even more dramatic use.

Resources are now freely available, like some PTO documents, that were inaccessible to most persons in the past. U.S. court decisions that were the exclusive right of law reporter publishers are now available without charge, directly from the courts' computers. A high quality web site at Emory University Law School has collected and organized some of this information.

Professors will create more web sites and improve quality, as web site become more specialized. The challenge is for professors to learn how to use the Internet, creating web sites and keeping the sites up-to-date. The incentives for committing this time and energy are the quick and global distribution of the professors' ideas, and making available essential information to assist worldwide evaluation of current legal issues.

The Internet has the effect of person to person communications, eliminating expensive prior means of communication. Even the book publishers and paper journals will be impacted by the Internet, although these slower forms of publication will not be eliminated in the near future.

The increasing use of the Internet means there will have to be some adjustment in the standards used to evaluate professors' scholarly work, in the promotion and tenure process. The Internet presents opportunities for more interactive scholarship creation and direct distribution.

The Internet helps schools and organizations with limited resources in many ways. Third world countries should be able to access materials they could not afford in the past. The cost of Internet access will not be very much, compared to a full library of books. As the use of satellites increases for global access, there should not be any academic user that will be denied the opportunity to access the Internet at a reasonable cost, for research and teaching. The Internet may become the best form of communications between teachers and students.

The author welcomes questions and comments on this paper. They can be sent via E-mail to: fryer@fryer.com, or faxed to (410) 837-4560. The author's address is: Professor William T. Fryer, III, University of Baltimore School of Law, 1420 North Charles Street, Baltimore, Md. 21201, U.S.A.

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Comments on this article are welcomed. All comments should be sent to the editor at the following e-mail address: fryer@fryer.com --.

* "FRYER" is a trademark for paper publications created printing out from the Internet or from a down loaded copy of the web file, and it is a service mark for electronic information services.

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