Ed Fallone’s fascinating post below on the Catcher in the Rye suit, now being briefed in the Second Circuit, is worth reading. I was particularly interested in Ed’s discussion of Cervantes’s criticism of an unauthorized sequel to Don Quixote. Copyright scholarship occasionally mentions that Cervantes rushed Part II of Don Quixote into print because of pressure from a competitor, but I hadn’t heard the details before. Cervantes’s reaction to the implicitly critical sequel does seem like an important moment in the development of the idea of the fictional author as master of his or her creation.

However, I also want to offer a contrary view on a couple of points that Ed raises. First, Ed concludes that copyright’s commercialization of creative works is a problem. One solution, Ed proposes, is to eliminate copyright protection for literary characters. I disagree with both sides of this equation. There’s an emerging problem with copyright law, but it’s not commercialization of creativity. Commercialization of creativity is the entire reason copyright law exists. And eliminating copyright protection for sequels across the board would create far more problems than it would solve.

The parties in the Tafas v. Doll have filed a “Joint Consent Motion for a Stay of En Banc Proceedings.”  As patent practitioners are painfully aware, Tafas stemmed from the USPTO’s August 21, 2007, new patent-prosecution rules and regulations. The “new regulations” challenged were Rules 75, 78, 114, and 265.  Rule 75 established the number of claims that could be presented in an application without an accompanying examination support document.  Rule 78 established the number of continuing applications that could be filed within a patent family.  Rule 114 established the number of requests for continuations that could be filed within a patent family.  Finally, Rule 265 set forth the requirements for an examination support document.

Tafas, later joined by GlaxoSmithKline, challenged the validity of the new regulations, and the United States District Court for the Eastern District of Virginina granted summery judgment for him (and GSK), enjoining the USPTO from implementing and enforcing the new regulations.  Much to the dismay of most patent practitioners, on appeal, the Court of Appeals for the Federal Circuit affirmed, in part, and reversed, in part, that decision.  The CAFC only agreed with the district court that Rule 78 was invalid and remanded the case to the district court for further consideration of the remaining issues.  Then, on July 6, 2009, the CAFC granted Taffas and GSK’s petition for rehearing en banc.

Well, all of the parties involved now want to wait and see what will happen since David Kappos has been nominated as Under Secretary of Commerce for Intellectual Property and Director of the USPTO.  If Kappos is confirmed after his Senate Judiciary Committee nomination hearing, which is scheduled to begin tomorrow, July 29, 2009, then Kappos could moot the entire case by rescinding the rules at issue.

Accordingly, last Friday, July 24, 2009, in their Joint Consent Motion for a Stay of En Banc Proceedings, all of the parties in the case asked the court to stay all en banc proceedings, including briefing and oral arguments, until 60 days after Kappos’s confirmation.  Hopefully, Kappos is confirmed; hopefully, he rescinds the new rules; and, hopefully, he does so quickly.