Post of the Day
March 17, 2000

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Subject:  Westlaw Analogy
Author:  larryharry

I am a lawyer and have been thinking lately that Celera's emerging business model is really to "editorialize" the genome and is analogous to Westlaw's "headnotes" editorial system. As such, its "editorial" genome comments should enjoy patentable or copyrightable status (even though the underlying genome may not be proprietary).

For the benefit of the non-legal types out there, Westlaw is a huge database operated by West Publishing Company containing substantially all laws (including court cases and statutes). The database is huge - - the Harvard law library contains over one MILLION volumes of laws, and Westlaw also has most of them online.

Westlaw maintains a huge staff of editorial lawyers who review new cases as they are decided by the courts and write up useful "headnotes" which summarize and catagorize the legal holdings in the cases. The headnotes are an integral part of legal research conducted by all lawyers throughout the country because they speed the process of analyzing the holding of cases.

Several years ago, Westlaw's main competitor - - Lexis - - challenged in court Westlaw's claim that the headnotes are proprietary and contended that Lexis could used them in its own legal database. Westlaw WON that case in the Supreme Court, which held that the headnotes are proprietary and copyrightable, even though the underlying court decision is in the public domain and not copyrightable.

It is interesting to note that, since that case was decided, Westlaw has become the undisputed leader in legal database business, even though Lexis enjoyed first mover status. Much of its dominance is attributable to its Supreme Court victory holding that its valuable headnotes are proprietary. As far as I know, very few lawyers use Lexis any more since they can get everything they need on Westlaw and get the benefit of using the headnotes.

I see the future value of Celera in developing customized genomic research as analogous to Westlaw's headnotes. My understanding is that this is really what Celera intends to do - - to study and figure out the genome based upon the raw genomic data which spits out of its analyzers. Essentially Celera will "editorialize" the genome, giving commentary based on what Celera thinks each gene does and tying it in together with other genes. Like Westlaw's headnote comments benefit lawyers, these editorial "comments" will have enormous value to gene researchers and drug makers.

Under the Supreme Court case notes above, strong arguments exist that editorialization of the genome is copyrightable or patenable. It doesn't matter that the underlying information is "important" to the public (what's more important than the laws underlying the Westlaw's headnotes?), the fact of the matter is that the editors expended huge sums and efforts to create the editorial comments and they are therefore to the benefit of a copyright.

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