Unauthorized Use of Protected Doctor-Patient Templates Claimed

information to treating physicians. mchale agreed that the function of the ed the chief nursing officer at lake wales medical center and hired by pro-med to revise and lrp publ'ns, inc., 266 f. 3d 1305, 1310 (11th cir. 2001) (citing irving v. mazda was a standard that applied to anything but factual compilations or impacted the blank forms "anything to do with the actual patient care." mchale further clarified that "[t]he those headings would convey to users the information that this group breach of fiduciary duty and breach of contract claims was an abuse of discretion. for determining whether a form conveys information, and the information two-party contracts are not preempted because contracts do not create exclusive formulate a product called "pro-med maximus"; pro-med maximus would refer to its breach of contract claim was not. id. at 1310�12, 1318�19. the selection or arrangement of terms in the ed maximus forms is original or take certain actions vis-�-vis third parties, that should not make the bargain struck between honorable edward r. korman, united states district judge for the eastern district of* instructions. see generally de 100, ex. a-1. each of the blocks on headings [are] so obvious that their selection cannot be said to satisfy steps." certainly, mchale did not "invent the idea" of doing a medical and social history [t]he [templates] as a whole act as an integrated system for efficiently component . . . or on a stand-alone basis." the license agreement would remain materials solely for pro-med's benefit and to utopia's detriment; demanding 101 u.s. 99, 107 (1880)). examples of blank forms include "time cards, graph 11 we note that the district court, after dismissing the copyright law claim, also could30 preempted by the copyright act; utopia claims that the district court's refusal to 28 u.s.c. � 1338(a) and supplemental jurisdiction over the state law claims under 28 u.s.c. � medium of expression and come within the subject matter of very different. for example, the history of present illness subcategories (e.g., 18 form calls for an exam of the lungs. given that the forms are for routine, they consist of blocks in which to record information from the ed maximus is a set of charts for a physician to use to record a patient's our review of the forms and mchale's testimony indicates that the headings nation enters., 501 f. supp. 848, 850 (s.d.n.y. 1980)). between our independent review of the ed maximus forms and especially described, explained, illustrated, or embodied in such work." 17 u.s.c. � 102(b). licensed material." such a product could include "the printing and manual in september 2001, utopia and pro-med entered into the license turning to the evidence submitted by the parties, mchale, in his deposition, amended complaint filed on june 19, 2008. have dismissed the state law claims pursuant to � 1367(c)(3). discretion. we consider these issues in order. exercise supplemental jurisdiction over the state law claims was an abuse of states." to consider diagrams" like the ones on the ed maximus forms in making an analysis. to stop using the licensed materials. f.3d at 1454�55). the "extra element" test was satisfied by law bulletin's need25 contained on previously existing check stubs," indicating that it would be possible for a check forms seek only certain information, and, by their selection, convey that the information sought is revenue it collected from the "sale, licensing or other distribution of the pro-med important. id. at 1107. if categories of information were sufficient to "convey information," mchale and plummer joined utopia as plaintiffs. they are no longer in the case.7 utopia subsequently re-filed its state law claims in the circuit court of broward12 utopia also argues that preemption is inappropriate because the first element of the28 these points, however, are disputed. the license agreement specifically stated that it extended relates to intellectual property which may or may not be patentable."). test by containing possible categories of information, thus indicating which information was (february 19, 2010) the author" and "possesse[d] at least some minimal degree of creativity." id. actions outside the scope of a contract cannot be said to breach that contract. to plaintiffs, inc. v. rural tel. serv. co., inc., 499 u.s. 340, 345, 111 s. ct. 1282, 1287 (1991). brief that it is referring to all of utopia's claims regarding epd as well as claims rights, but rather affect only their parties." id. at 1318 (citing procd, inc. v. 14 21 "`equivalent to' the exclusive rights of section 106." "the exclusive rights under performance, distribution or display, in order to constitute a the only way that the ed maximus forms could convey information would be in the dentalab and dentcom systems require certain information and order that utopia's state law claims. pro-med asserts that certain of utopia's state law defendant-appellant, selection or arrangement standard--still governs blank forms and was not altered by the feist utopia provider systems, inc., rights." id. at 1312. law bulletin's breach of contract claim, however, was not defendant with pro-med in counts i and ii, but not count iii. for convenience, we refer to the maximus as a compilation of terms.6 district courts and are preempted by the copyright act. utopia asserts that the (the "licensed materials"). pro-med would use the licensed materials to 9 motion for summary judgment on utopia's copyright infringement claim.23 licensed programs constitutes an extra element in addition to the copyright rights making this series of blank forms, which did not convey information. utopia's appeal and pro- 28 u.s.c. � 1367(c). here, prior to dismissing utopia's copyright claim, the derivative works, and to distribute copies to the public." id. at 1311 (citing 17 such a medical template. the ed maximus forms, therefore, are better analogized a matter of state law, and we leave it to the state court before which these claims the certificate utopia possessed, is prima facie evidence of the copyrightability of between the parties should be honored. see aronson v. quick point pencil co., 440 u.s. 257, claims is copyrightable, while "pro-med maximus" refers to the product sold by pro-med. the of the forms calls for the same information that any responsible physician would relating to the use of the maximus templates after the license agreement expired. we held that the state law deceptive trade practices act and unfair contending that pro-med committed unauthorized use of ed maximus and zeidenberg, 86 f.3d 1447, 1454�55 (7th cir. 1996)). "[c]ourts generally read24 information" test to analyze whether ed maximus is copyrightable, and do not end the analysis important. this cannot be what the copyright office intended by the statement `convey ask a patient with the given ailment. we reach this conclusion through our own (emphasis added). "the sine qua non of copyright is originality." feist publ'ns, joshua plummer, et al., baby's first year or the file structures used to organize a dental laboratory. the district court had original subject matter jurisdiction over the copyright claim under2 iii. discretion by not exercising supplemental jurisdiction over utopia's state law the case on the ground that utopia's claim arose under copyright law, and thus had utopia's copyright infringement claim on the ground that ed maximus was not we do not find it prudent to dismiss "certain" of utopia's breach of contract claims; it is we also note that our finding in part ii.a, supra, that ed maximus is not27 this provision was subject to a minimum royalty of 25 cents per patient visit unless5 we consider these arguments in turn. extremity/ankle/foot" and "chest pain" with the exception of "cardiac risk wolens, 513 u.s. 219, 222, 115 s. ct. 817, 820 (1995) (holding "that the [airline deregulation in whelan, the third circuit examined whether file structures used to organize the business count iii for breach of contract, the license agreement. all three counts were9 claims related to epd, and the claims related to the use of pro-med maximus and epd after the for the southern district of florida id. at 1311�12 (quoting foley v. luster, 249 f.3d 1281, 1285 (11th cir. 2001)). the court dismissed those state law claims before it granted pro-med summary3 timing, duration, location) are identical on the forms for "lower the district court sometimes referred to these templates as charts. we use the words4 defendant-appellee. products are identical except in name. fiduciary duties to utopia by putting pro-med's interests ahead of utopia's by ground that the "memory stub expression" was not copyrightable. an end user. in 2003, utopia obtained a copyright for ed maximus, effective as 23 documenting a patient's symptoms, and the physician's conclusions otherwise agreed to by the parties. 1367(c)(1) and (2), the court "exercise[d] its discretion and dismiss[ed] the state to the united states copyright office, requesting a certificate of registration. in plummer's first copyright application, he described ed maximus as a "compilation6 utopia also moved for summary judgment on count iii.11 from other salesmen "misse[d] the mark" because "many of the sales techniques described in the pro-med. we do not see how this changes the analysis, however; even if the parties could not required instead of or in addition to the acts of reproduction, court enforcement of contract terms set by the parties themselves"). without asking about their history" or the other systems identified in the exhibits. the ed perform that action can be original. looking to the forms themselves, the first20 grossjung in count ii. utopia asserted that these defendants breached their "copyright protection subsists . . . in original works of authorship fixed in doctors about what questions they should be asking. id. at 972 (citation omitted).18 opinion mean to imply that, for example, if a new disease arose, and if there was an actual the present illness, such as how long it has been present, the quality of motion to dismiss norton printing co.'s copyright infringement claim, asserting that norton suit against clarke checks on a number of claims, including copyright allegations, and asserted nine affirmative defenses, two of which are relevant here: of complex issues of state law and would predominate over the federal claim. we documentation to help anyone practice medicine." in sum, mchale agreed that the 5 court's ruling presents a question of law.15 iii, utopia alleges that pro-med breached their contract by failing to pay royalties rights."); bowers v. baystate techs., inc., 320 f.3d 1317, 1324�25 (fed. cir. 2003) ("[m]ost questions in these categories differ only inasmuch as would be expected given the some courts have adopted a "bright-line" rule regarding blank forms; that is, they hold17 appeals the dismissal of some of utopia's breach of contract claims, contending examination of the forms and an analysis of mchale's deposition, the evidence that it was "commonplace when . . . documenting the examination in the emergency department templates to create the first version of epd, but modified the second version. pro- informative"). although the ninth circuit characterized the eleventh circuit's approach in on pro-med maximus from 50% to 30% of its sales. the license agreement the terminology" used in the templates. we find that the selection and claimant-appellee, original jurisdiction over utopia's copyright claim, and that the conduct boxes and terms . . . also serve[d] to convey information as to the type of tests to be conducted see also altera corp. v. clear logic, inc., 424 f.3d 1079, 1089 (9th cir. 2005) ("most25 unfair advantage of pro-med's position in collecting revenues from sales of epd completion of charts, as well as the creation of an electronic medical record based on or derived in accordance with these principles, we examine whether the selection of determinative element, therefore, was whether the rights asserted were paper, account books, diaries, bank checks, scorecards, address books, report cause of action qualitatively different from an action for copyright."); cf. am. airlines, inc. v. claim, the district court had supplemental jurisdiction over utopia's state law to the non-copyrightable baseball scorecard or travel diary with generic headings forms, order forms and the like, which are designed for recording information and expired on october 1, 2006, after unsuccessful negotiations to extend the the parties cross-filed motions for summary judgment on count i. on11 ii. merely by labeling it a blank form. conveyed information, he agreed that the forms do not "[c]onvey information" information requested by the ed maximus forms or its arrangement is informative 991 f.2d 426, 431 (8th cir. 1993) ("[t]he alleged contractual restriction on national's use of the 2 `subject matter of copyright.'" because we have found that the second element of the wainwright illness, and that is why it was the first substantive portion of every ed maximus new york, sitting by designation. absent notification of nonrenewal by either party. once terminated, pro-med had jaslow dental lab., inc., 797 f.2d 1222, 1242�43 (3d cir. 1986) (noting that the third circuit, information such as the patient's name, date of birth, sex, and chief complaint. maximus to pro-med, a marketing agent, which would sell the template to med contends are preempted by federal copyright law, we deduce from pro-med's than what would be expected on such a medical template, and second to whether forms" and thus not entitled to copyright protection. utopia's challenge to the encounter in that "some people need to be prompted" to capture all of the elements while it is not entirely clear which of these breach of contract claims pro- supplemental jurisdiction." lucero v. trosch, 121 f.3d 591, 598 (11th cir. 1997). utopia has also appealed the district court's award of $10,977.15 in costs to pro-med,14 not responsible for walking a physician through the steps because "[h]e's supposed to know the preemption occurs if the rights at issue (1) "fall within the `subject matter of legal or equitable rights [under state law] that are equivalent to any of reasons for declining jurisdiction. law, dismissing them without prejudice.2 3 maximus templates did not provide new capabilities that clark had not previously seen on f.2d at 1107. the clarke checks court's statement that "blank forms which do not convey decline to exercise supplemental jurisdiction over a claim under rights under section 106, as required for preemption under the second prong of the states. about a year later, pro-med began the development of its electronic practice of medicine is an art and science. we are talking a documentation form that you are capturing that encounter on. so, i don't think there is any contain original pictorial expression are not copyrightable." john h. harland co. the complaint referred to in the text and throughout this opinion is utopia's third8 informed a physician as to how to treat a patient. id. (footnote omitted); cf. gentieu v. tony stone images/chicago, inc., 255 f. supp. 2d 838, 848 copyright protection does not, however, extend to anything in the work of ninth circuit's reading of clarke checks does not comport with our reading of it. bibbero, 893 competing interests . . . in deciding whether it is appropriate to exercise lipscher explains when the copyright act preempts state law claims. in copyright protection, it is contradictory to assert that the material at issue "fall[s] within the simply because many of them fail to display sufficient creativity."); whelan assocs., inc. v. wainwright preemption test.28 "history of present illness" and room thereunder for a physician to fill out the feist dealt with how to resolve the tension between facts generally not being copyrightable and in addition to utopia's breach of contract claim in count iii, reviewed to the question of whether the district court erred in its sua sponte dismissal of described by the second circuit than to a possibly copyrightable book about a state court will be responsible for determining the scope of the agreement. the terms actually convey information to the treating physician. we find that each appeals from the united states district court claims are not preempted. to succeed on its breach of contract claims, utopia26 associated press, 937 f.2d 700, 709 (2d cir. 1991) ("[a]ll forms need not be denied protection pro-med clinical systems, l.l.c., any tangible medium of expression," including literary works. 17 u.s.c. � 102(a) preempted, certain of the breach of contract claims should be dismissed because lipscher, lrp publications, inc. violated a subscription agreement it signed with clinical impressions, consultations with other doctors, and discharge template. likewise, the review of systems would be the next step taken. the need only minimal creativity to be copyrightable; they are copyrightable "so long as [choices as (1) the claim raises a novel or complex issue of state law, the originality claimed in the forms is in the "selection and arrangement of the selection of the terms on the forms; that is, if they convey information to the epd; failing to report revenue derived from epd, falsely reporting revenue from versus works with headings that convey information. a baseball scorecard with copyright' set forth in sections 102 and 103" and (2) "are `equivalent to' the requested through the ed maximus forms is more expansive than that in clarke the complaint named thomas l. grossjung, the president of pro-med, as a co-9 09-12887 of categories was something out of the ordinary. verbatim, changing only the name of the product. on november 1, 2001, pro-med common law unfair competition were preempted by federal copyright law, but that hospital emergency departments. mchale and plummer sought to license ed4 mchale and plummer ultimately received a certificate of registration for ed supra, utopia set forth a breach of fiduciary duty claim against pro-med and agreement but challenged its enforceability, denied the complaint's material breach of contract claims fall within the exclusive jurisdiction of the united states the present litigation began in the circuit court of broward county, of terms." the copyright office then issued a certificate of registration. general scope of copyright and there is no preemption." that such an argument would fail. id. not only were the files complex and detailed, but [publish] we have applied the same test--looking at whether the terms conveyed information as to two defendants as pro-med. interchangeably. medical and social history would also be taken; it would not necessarily follow information and falsely reporting revenue information; using the licensed of state law which would otherwise predominate over the federal claim present by numerous bank stationery companies. the memory stub merely subcategories on the forms are often very similar, even when the complaints are supplemental jurisdiction, we cannot say that the district court abused its courts have held that the copyright act does not preempt the enforcement of contractual information to be input as part of the actual exam done for the standard as announced in clarke checks. utopia argues it did so by specifying that compilations in creating pro-med maximus, pro-med copied the ed maximus templates versus (n.d. ill. 2003) (holding that photographic poses "are not copyrightable elements where they on epd and pro-med maximus, competing against the maximus templates with by pro-med. utopia provider systems, inc. ("utopia") alleges that both products a certificate of registration from the united states copyright office, such as bulletin's state law claims based on a state deceptive trade practices act and of terms in the ed maximus templates show "extraordinary degrees of creativity and addition to recording information, "the format and arrangement used, together with the different "consider" as a "part of [his] job." mchale nonetheless asserted that the terms21 address what would happen to the licensed materials following the expiration of the contract. utopia's state law claims through supplemental jurisdiction. "we review the preempted by the copyright act. joshua plummer, a "healthcare administrator," created a prototype template from 26 presented on a specific type of complaint. and we affirmed: jurisdiction over all other claims that are so related to claims in the action within infringement claim. second, whether the district court erred in its sua sponte constraints on copyrighted articles."); nat'l car rental sys., inc. v. computer assocs. int'l, inc., by section 106 in works of authorship that are fixed in a tangible "attempting to protect in its acquisition misconduct claims [were] copyright within the exclusive jurisdiction of the united states district courts and were 2006). "as a practical matter, the district court is in the best position to weigh the not convey information or contain original pictorial expression. problems, etc. other than what necessarily differs chart to chart 1099 (1979) ("commercial agreements . . . [are] not displaced merely because the contract plaintiff-counter- information is our decision in clarke checks. john h. harland co. created a based on the nature of the ailment addressed, each chart is identical. information or might use the same information differently. when we compare the court for the southern district of florida. its complaint contained three counts:7 8 with a check and the carry-around stub. id. clarke checks, inc. soon modified its a.k.a. utopia providers systems, inc., in october 2001, mchale and plummer created 56 ed maximus templates the dispute in this case arises from pro-med clinical systems, llc's "certain of utopia's breach of contract claims." appellees' brief at 37. in count clerk the copyright act preempts birth, and chief complaint. the next block calls for information on pro-med contends that the license agreement does not govern these claims; discretion." parker v. scrap metal processors, inc., 468 f.3d 733, 738 (11th cir. comb through the record to deduce the royalties that pro-med paid and which, if affirmed. copyright as specified by sections 102 and 103. september 19, 2008, prior to ruling on these motions, the district court sua sponte product to address the portability problem associated with desk-style checkbooks. according to clark, the function of the ed maximus forms was not to "tell the physician are currently pending to perform the task.29 february 19, 2010 corp., 630 f.2d 905, 908 (2d cir. 1980). mchale was asked whether the "prompting" he described referred to capturing dismissal of utopia's state law claims. the parties both assert error in this arguable that all of utopia's breach of contract claims fall under the license agreement, and the 12 headings for "cities," "hotels," and "restaurants" would fall into the former agreement expired. and pro-med maximus by refusing to pay utopia royalties, withholding revenue columns headed "innings" and lines headed "players" and a travel diary with relevant information. the line item blanks each have a word or two physician documentation system ("epd") based on the pro-med (and thus ed) mchale's testimony is consistent with the testimony offered by lee clark, who was22 in august 2001, dr. michael s. mchale, an "emergency physician," and pursuant to the license agreement, recover for any actions pro-med took that patient's unique medical information. the relevant test for copyrightability of ed must prove a valid license agreement, which constitutes an "extra element" under that a physician doing a systems review of an emergency room patient would factual compilations being copyrightable. feist held that a factual compilation may be by the copyright act. printing co.'s medical laboratory test forms were not copyrightable. id. at 134. the court even minimal creativity . . . . such a work conveys no information, b. 265, 99 s. ct. 1096, 1100�01 (1979) (noting that "a pending patent application gives the infringement. id. at 970�71. the district court ruled in favor of clarke checks, according to the court, the copyrightability of blank forms would be "potentially limitless. all consequently, we affirm the grant of summary judgment on the to "capture a patient encounter." in the words of the district court, "methodology that physicians follow with respect to questioning and examining emergency to be the exclusive marketing agent for utopia, and utopia was to refer all potential clients to 700 (2d cir. 1991), is more helpful in this regard. there, the second circuit 16 contract, not copyright rights. as the seventh circuit has stated, claims involving history. the parties consider it to be that a valid patent will issue"). all of law bulletin's claims fell "within the `subject matter of copyright.'" the county, florida. after the review of systems or doing a physical exam after the medical and social subscription agreement. id. at 1309. on appeal, the parties agreed that law superficial exams, however, we would not expect disagreement on the questions as used in copyright, original means that the "work was independently created by article iii of the united states constitution." given that the district court had but agrees that pro-med is entitled to this amount if it prevails on appeal. district court's refusal to exercise supplemental jurisdiction over the state law explained that blank forms do not convey information if the (citing 1 m. nimmer & d. nimmer, copyright �� 2.01[a], [b] (1990)).16 checks. the second circuit's decision in kregos v. associated press, 937 f.2d harland's memory stub does not convey any information beyond that state-created case [sic] of action, then the right does not lie within the and the information which [was] deemed important." id. doubt on the question, validity will not be assumed." durham indus., inc. v. tomy file structures are sufficiently informative to deserve copyright protection. of october 29, 2001. hospitals. on august 23, mchale and plummer formed utopia to own and that the district court should have found them preempted by federal copyright law. . . . shall have jurisdiction of appeals from all final decisions of the district courts of the united diary contained a group of headings whose selection (or possibly a. we recognize that our holding may be in tension with norton printing co. v.23 claims. pursuant to 28 u.s.c. � 1367(a), a district court has "supplemental different type of complaint. for example, the lower extremity form asks for an the licensed material is not immediately clear. the license agreement also has provisions that utopia argues that the supreme court's decision in feist modified the eleventh circuit18 8 to show the existence of a valid contract between the parties. when pressed on this point, mchale agreed that the first thing a doctor in the limited to the particular selection or arrangement." id. at 350�51, 111 s. ct. at 1290 (emphasis therefore, they are merely disguised copyright infringement claims and are thomas l. grossjung, trip, depending on the suggestions of items to record and their arrangement, could in february 2006, pro-med reduced the amount of royalties it paid utopia stub, although a blank form, to convey information. id. at 972. we therefore look to the "convey 20 copyright claimed in the pictorial expression on the forms. mchale admitted there was "nothing nos. 09-11160, 09-11447, are derivatives of its paper templates, ed maximus. pursuant to an agreement in1 (3) the district court has dismissed all claims over which it has 15 maximus template was to record or capture the information gathered during a act's] preemption prescription bars state-imposed regulation of air carriers, but allows room for information or adequately addressing the needs of the patient, however, he 1983), we recognized a two-part test to be applied in copyright preemption cases. not just because it contains blanks, but because its selection of light most favorable to the non-movant. utopia is the non-movant on pro-med's motion for began selling pro-med maximus templates to hospitals throughout the united the majority of circuits have rejected bibbero's bright-line approach. see, e.g,, kregos v. 3 ed maximus was not copyrightable because its templates were blank forms that operation, concept, principle, or discovery, regardless of the form in which it is section on the forms is the same regardless of the ailment, calling for personal our relevant precedent on how to determine whether a form conveys these appeals present two issues. first, whether the district court erred in14 the district court awarded pro-med summary judgment on utopia's approaches might use significantly different file structures. the file structures in and the checkbook's permanent stub, so that a person could comfortably travel sale of epd. information in a particular fashion. other programs might require different f.3d 1287, 1305 (11th cir. 2008) (explaining that a claim that sales techniques were pilfered would automatically renew for an additional one-year period each year thereafter 6 therefore affirm on this issue as well. based on pro-med's use of pro-med maximus and epd beyond the period of the claims. a district court may, however, completion of charts, as well as the creation of an electronic medical record based "it is well-established that blank forms which do not convey information or conceded that the template did not do the latter--the template did not have the forms then call for the history of the present illness, a review of 1367. physician-patient encounter, and the electronic version of that product developed underlying the state law claims was the same conduct underlying the copyright count i and ii prayed for both legal and equitable relief. count iii sought damages10 blocks change based on the particular illness to be addressed using of a patient encounter, including billing, coding, and medical legal aspects. when utopia's breach of contract claim indisputably covers pro-med's alleged failure to pay29 7 factors" being listed as an additional subcategory on the latter form. the publicly available." lipscher, 266 f.3d at 1319; see also aronson, 440 u.s. at 262, 99 s. ct. at 25 the license agreement purported to create "an exclusive agreement." pro-med was24 failed to pay royalties that it owed utopia, utopia brought this action against pro- judgment and granted pro-med's motion on count i. the court concluded that ed the third circuit's approach in whelan accords with the second circuit's approach.19 or out of the ordinary. we look first to whether the headings are anything other providing the care." indeed, when mchale was directly asked whether the forms22 u.s. court of appeals copyrightable, is not dispositive of any claims stemming from the license agreement. license hold a valid copyright in ed maximus and abused its discretion in declining to originality is a constitutional requirement. feist, 499 u.s. at 346, 111 s. ct. at 1288.16 epd, and continuing to sell pro-med maximus and epd after the license augustana hosp., 155 u.s.p.q. 133 (n.d. ill. 1967). there, augustana hospital brought a dollar amount of the check, the payee of the check, and the purpose of any royalties on epd, and if so, for which versions. then, the court will need to bulletin did not hold a valid copyright in the material at issue. we held that law they are filled out, most certainly do not convey any information about a patient. of works." the copyright office responded that this description was insufficient to obtain a dismissed counts ii and iii. the court explained that, while it could entertain ________________________ any, royalties are still owed. the breach of fiduciary duty claims will also require originality," therefore, is relevant only to the extent that it shows the forms convey information. royalties on pro-med during the period the license agreement was in effect. pro-med does not [w]e employ an "extra element" test such that "if an extra element is patient: the top block calls for personal data such as name, date of would not necessarily be considered in that order or documented in that fashion. which they would develop "ed maximus," a system of templates for use in medical templates. exercise supplemental jurisdiction over the state law claims. pro-med cross- a. "template doesn't prompt the physician to adequately care for the patient" but controversy on how to treat the disease, an experienced physician could not copyright a form that characterized them instead as a "means for capturing and retaining information." motion for summary judgment on utopia's copyright infringement claim, we turn med began marketing the full version of epd in september 2003. arrangement of the terms does not convey information and is not sufficiently in the united states court of appeals filed 10 we have jurisdiction under 28 u.s.c. � 1291, which provides that "courts of appeals13 lipscher. the rights utopia asserts, therefore, are not "equivalent to" exclusive27 17 the uncontradicted evidence gleaned through depositions, we are unconvinced that 29 tjoflat, circuit judge: before tjoflat and cox, circuit judges, and korman, district judge.* 801, 811 (11th cir. 1985); however, "[w]here other evidence in the record casts clarke checks as adopting the "bright-line" approach that blank forms cannot be copyrighted, the preemption test is not satisfied, we need not reach this argument. while we know from clarke checks that a check stub asking for the date, of] two- or three-page sets of charts, each useful for a particular type examine the scope of the license agreement, applying state law, which may be an 1990). the court rejected the argument that a blank form could satisfy the "convey information" (4) in exceptional circumstances, there are other compelling to selection and arrangement] are made independently by the compiler and entail a minimal throughout this opinion, "ed maximus" refers to the product utopia created, which it1 district court sua sponte determined that "such state law claims would tend to john ley maximus module" in "any form . . . distributed by [pro-med] either as a5 pro-med continues to sell epd. pro-med has never paid utopia royalties on the applying lipscher, we find generally that utopia's breach of contract marketing and selling epd, which competed with pro-med maximus; taking maximus, therefore, is whether its forms "convey information." the forms, before 4 b. agreement. pro-med continued to sell pro-med maximus until mid-june 2007. florida, on january 17, 2007. utopia filed suit against pro-med for breach of the check. thus, we agree with the district court that harland's utopia and pro-med less enforceable. the dollar amount of the check, the payee of the check, and the purpose of the v. clarke checks, inc., 711 f.2d 966, 971 (11th cir. 1983) (citing baker v. selden, prejudice. on may 8, 2007, utopia sued pro-med in the united states district agreed that it is "common when [a doctor] examin[es] a patient in the emergency before they are filled out nor "tell an emergency physician how to do his job." he argue that this claim would be preempted; rather, pro-med argues that we can dismiss all of the "like the majority of courts that have considered this issue . . . ha[s] held that blank forms may be competition claims were preempted because the rights law bulletin was special about having a picture on a template of the front of someone's head and the back" and arduous task. see supra note 29. it will need to decide whether pro-med owes distinguishable. we now briefly turn to utopia's argument that the district court abused its contract, i.e., the license agreement. after pro-med moved the court to dismiss aspects of a dental laboratory--might be accomplished, and several of these looking to the two-part preemption test set forth in wainwright, the granted pro-med "an exclusive royalty-bearing license to sell, market, service, check does not convey information, clarke checks does not set forth a clear test detailed and contain[ed] many separate categories and areas for examination." id. at 135. in do not in themselves convey information." 37 c.f.r. � 202.1(c).17 rather "prompts the physician to capture the information that derives from provides lines on which the check writer can record the date, the maximus templates and that the content in the ed maximus forms was content 17 u.s.c. � 301(a). in crow v. wainwright, 720 f.2d 1224, 1225�26 (11th cir. license agreement expired, because they are not covered by the license agreement. both of the charts contains blanks to be filled in by the physician with the how to do his job," but rather to act "a means for him to record what he's done." the forms were systems, medical and social history, physical exam, medical decision making, 13 preemption clauses to leave private contracts unaffected." id. (citing procd, 86 we affirm. copyright infringement claim on the basis that ed maximus templates were "blank upgrade the template system and to assist in developing epd. clark agreed that there is a copyrightable "if it features an original selection or arrangement of facts, but the copyright is emergency department generally does is inquire about the history of the present to be brought in federal court, utopia voluntarily dismissed the case without effect between october 1, 2001, and october 1, 2006 (the "license agreement" or department to go through all of the different major headings" that were on the ed distribute and otherwise use" its rights associated with the ed maximus charts wainwright test is not satisfied; if, as pro-med argues, blank forms fall outside the scope of 1243. defendants did not argue that the files did not convey information, and the court noted _________________________ maximus templates. pro-med copied directly from the pro-med maximus in order to resolve utopia's breach of contract claim, a court will need to courts to examine this issue have found that the copyright act does not preempt contractual obligated to pay utopia royalties if any portion of ed maximus was provided to 711 f.2d at 969. harland inserted a small, carry-around stub between the check clinical impressions, and finally, consultation, disposition, and instructions. the and subcategories on the ed maximus forms are what one would expect to find on granting pro-med's motion for summary judgment on utopia's copyright book were nothing new to a profession that is one of the world's oldest"). we do not in this the forms in the norton case, so we cannot determine whether our case is factually identifying what information should be placed there. dominate the federal claim and obscure its significance." therefore, pursuant to � copyrightable, and declined to exercise supplemental jurisdiction over utopia's on appeal, utopia argues that the district court erred by refusing to entertain law claims."30 medical and social history. the next two blocks, on page two, call for decision concerning factual compilations. utopia's argument that the selection and arrangement calls for information on the present state of all the patient's body denied the motion to dismiss after an examination of the forms, noting that they were "quite degree of creativity." feist, 499 u.s. at 348, 111 s. ct. at 1289. utopia ignores, however, that there are many ways in which the same goal--the organization of the business added). feist did not imply in any way that the rule concerning the creativity in selection of facts desk checkbook to include an intermediate carry-around stub. harland brought it even contemplated that such a software product could include "the printing and manual agreement, effective october 1, 2001. pursuant to this agreement, utopia of ailment, such as chest pain, burns, head injury, pregnancy related 24 breach of fiduciary duty and breach of contract claims that were based on state follow necessarily from the choice of the subject matter or are otherwise unoriginal"). exclusive rights of section 106." id. (quoting harper & row, publishers, inc. v. motor corp., 136 f.3d 764, 767 (11th cir. 1998)). and directions to the patient. . . . [each of the 56 templates consists copyright, and plummer submitted a second application describing the product as a "compilation applicant some additional bargaining power," the amount of which is derived from "how likely those counts under its supplemental jurisdiction, "those claims present questions any software product "which uses or employs a full or partial copy of any pro-med argues that even if utopia's breach of contract claim is not wholly original jurisdiction, or judgment. the ruling is challenged in utopia's appeal and pro-med's cross-appeal. in effect for five years, unless sooner terminated in accordance with its terms, and not be "possible to provide competent and adequate care of an emergency department patient comprehensiveness and complexity of the file structures at issue here with the "we review the district court's preemption determination de novo." lipscher v. 22 for the eleventh circuit medical history and present symptoms. the charts contain headings such as a work, so. bell tel. & tel. co. v. associated tel. directory publishers, 756 f.2d ("pro-med") use of pro-med maximus, paper templates designed to capture a such original jurisdiction that they form part of the same case or controversy under did not convey information, and utopia's breach of contract claim was preempted defendant-counter- claims over which the district court has original jurisdiction, that blank forms inherently do not convey information and are not copyrightable. the ninth med's cross-appeal followed.13 district court's decision not to exercise supplemental jurisdiction for abuse of concessions regarding royalties; and refusing to pay royalties. (2) the claim substantially predominates over the claim or problem presented and the decisions made by the physician. these the pain, what exacerbates it, what relieves it, etc. the next block the extent that is pro-med's argument, it is correct--but we need not parse through subsection (a) if-- stub at issue as a blank form; the court analyzed whether it conveyed "information beyond that law bulletin publishing company by making copies of materials covered by the i. information. 711 f.2d at 971. moreover, the court's analysis went beyond identifying the check information' in 37 c.f.r. 202.1(c)." id. d. c. docket no. 07-60654-cv-wjz the exclusive rights within the general scope of copyright as specified manage the rights in ed maximus. rule. while we note that the creativity in the selection of terms on the ed maximus forms bears license agreement and pro-med's failure to pay royalties.10 u.s.c. � 106). to determine whether the rights asserted in a claim are equivalent most favorable to utopia. information . . . are not copyrightable" does not indicate a view that blank forms cannot convey headings is totally uninformative. on the other hand, if a scorecard or agreements, like subscription agreements, "are not invalidated merely because the information is the copyright act include the right to reproduce the copyrighted work, to prepare med alleging claims of copyright infringement, breach of fiduciary duties, and for the foregoing reasons, the judgment of the district court is 28 preempted: law bulletin "sought to enforce rights created by a simple two-party department patients" consistent between hospitals, and that ed maximus as well as other we next look to the question of whether the headings actually conveyed summary judgment on the count i copyright claim. having found that the district court did not err in granting pro-med's conveys information. therefore, we find that the ed maximus forms are not to these rights, utopia appeals, arguing that the district court erred in finding that it did not category; books intended to record the events of a baby's first year or a european an in-depth analysis of the duties owed by pro-med to utopia under state law. original. as a starting point, we note that if the correct way to perform an action is aspects of a dental laboratory were copyrightable under the blank forms doctrine. 797 f.2d at eleventh circuit contained on previously existing check stubs which are manufactured breach of contract. the district court granted pro-med summary judgment on evaluation of ankle range of motion in the physical exam, whereas the chest pain given the deference we afford a district court's decision whether to exercise arrangement) displayed cognizable creativity, the author's choice of "blank forms" at issue in the cases mentioned above, we have no doubt that these count i for copyright infringement; count ii for breach of fiduciary duties; and agreement to avoid the cost of having to litigate the validity of a copyright, and this bargain lipscher court found that because the material at issue was a compilation of facts, a question of law is created when we view the record before the district court in the15 discretion by finding that adjudicating counts ii and iii would require resolution well established in a profession, we fail to see how a description of how to memory stub is merely designed for recording information and does utopia's claims here to decide what is covered by the license agreement. that is this holding also makes sense on public policy grounds. parties may enter a license26 the chart. the final blocks allow for information to be input for dismissal on different bases--pro-med claims that utopia's state law claims fell maximus was not subject to copyright protection because ed maximus was a fall into the latter. id. at 709.19 to any software product "which uses or employs a full or partial copy of any licensed material." from the charts." (emphasis added). whether an electronic product can contain a partial copy of the second circuit offered examples of works with obvious headings medical templates with which he was familiar were consistent with that methodology. it would on october 29, 2001, mchale and plummer submitted the ed maximus templates on or derived from the charts." id. at 708�09. 27 deemed important--and have reached the opposite conclusion. we do not know the content of the agreement specified that pro-med would owe utopia 50% of the on whether the forms convey information, the "convey information" standard--not a creativity in systems. the next block calls for information about the patient's cf. peter letterese & assocs., inc. v. world inst. of scientology enters., int'l, 53320 "agreement"), utopia licensed ed maximus to pro-med and pro-med was ________________________ although the forms contain diagrams of the relevant parts of the body, there is no21 first, pro-med cross-appeals the district court's sua sponte dismissal of the license agreement does not encompass them. of course, utopia cannot, here."12 pro-med's answer to the complaint admitted the existence of the license were not covered by the license agreement; that is simply acknowledging that the types of questions to be asked and tests to be conducted or as to the information which was copyrightable. accordingly, the district court did not err in granting pro-med's only. patient encounter. mchale stated that the template could "prompt" a patient next, but mchale conceded that taking it next "would [not] be unusual." 19 circuit took this approach in bibbero sys., inc. v. colwell sys., inc., 893 f.2d 1104 (9th cir. authorship that constitutes an "idea, procedure, process, system, method of ________________________ on february 2, 2009, the district court denied utopia's motion for summary in this case, the district court rejected pro-med's preemption argument. copyrighted if they are sufficiently innovative that their arrangement of information is itself