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November 27, 1996

James P. Milligan, Plaintiff,
Tupperware Worldwide, Inc, Defendant.

The opinion of the court was delivered by: SCOTT

 This matter has been referred to this court pursuant to 28 U. S. C. 636 (b)(1)(A) and (B) by Order dated March 18, 1996. Before the Court are the parties' cross-motions for summary judgment.


 Plaintiff commenced this action against defendant Tupperware Worldwide Inc. ("Tupperware") based upon an alleged patent infringement. Plaintiff alleges that he "created a certain numbers game and book entitled "Magic of Numbers" which is designed to teach children how to add and subtract, and also teaches the alphabet. Plaintiff asserts that on April 18, 1972 the Library of Congress Register of Copyrights issued Registration Number A325425 to Longwin Inc., an assignee of plaintiff with respect to the work entitled "Magic of Numbers" and that on December 11, 1973 Patent No. 3,777,416 was issued to Longwin Inc. with respect to that work. Plaintiff alleges that on September 22, 1972, the patent and copyright were "re-assigned" to plaintiff when Longwin Inc. became "defunct". Complaint at P5.

 Plaintiff claims that the defendant infringed his patent and copyright on January 11, 1994 by obtaining Patent No. 5, 277,587 for a numbers game and book. Plaintiff also alleges that defendant infringed his rights on May 10, 1994 by obtaining patent rights, Des. 346823, for a numbers game called "Fun in a Flash". Complaint at P7.

 Defendant denies plaintiff's allegations and asserts several affirmative defenses including that there is no legal entity "Tupperware Worldwide Inc.," the court lacks personal jurisdiction over the defendant, that venue is improper, that plaintiff's claims are barred by the statute of limitations, that plaintiff lacks standing to bring the instant claims, that plaintiff has failed to name all necessary parties, and that the patent on the "Magic of Numbers" game had expired.

(a) the Copyright Act does not protect "ideas" as alleged in the complaint;
(b) there is no similarity whatsoever between the instructions to plaintiff's "Magic of Number" game and defendant's patent for the "Fun in a Flash" toy or any other documentation pertinent to the "Fun in Flash" toy; and
(c) Plaintiff's claim amounts to nothing more than a claim of patent infringement which is barred by reason of the expiration of the patent on the "Magic of Numbers" game.

 See Defendant's Motion for Summary Judgment dated February 26, 1996.

 Plaintiff has cross-moved for summary judgment on liability asserting that the "work of the defendant's 'Fun in a Flash' is at least substantially similar to the creation of plaintiff's Magic of Numbers, and/or Symbol Recognition Teaching Device and therefore defendant is liable as a matter of law." In addition, plaintiff seeks sanctions against defendant "because of the bringing on of this frivolous motion." See Plaintiff's Motion for Summary Judgment dated March 7, 1996.

 Summary Judgment Standard

 Summary judgement shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCP Rule 56(c). Lipton v. The Nature Company, 71 F.3d 464 (2d Cir. 1995). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505(1986) (emphasis in original). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ( Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)), a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986) cert. denied 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Finally, mere conclusory allegations or denials in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton v. The Nature Company, 71 F.3d 464 (2d Cir. 1995); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980); SEC v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978).

 In copyright cases, summary judgment is routinely granted when no reasonable person could find the works substantially similar or when the alleged similarity concerns only non-copyrightable elements of the subject work. See Arica Institute v. Palmer, 970 F.2d 1067 (2d. Cir. 1992); Kregos v. Associated Press, 3 F.3d 656 (2d Cir. 1993); Walker v. Time-Life Films, Inc., 784 F.2d 44 (2d. Cir.) cert denied 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2278 (1986); Warner Bros. Inc. v. American Broadcasting Companies, 720 F.2d 231 (2d Cir. 1983); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.) cert denied 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980).

 Plaintiff's Copyright Claim

 Plaintiff claims that he continues to enjoy a copyright with respect to his work entitled "Magic of Numbers" and that Tupperware's "Fun in a Flash" game infringes that copyright. *fn1" Tupperware argues that (1) there has been no infringement inasmuch as the copyright laws do not protect "ideas"; (2) there is no similarity between the "Magic of Numbers" and "Fun in a Flash" instructions; and (3) that plaintiff can not use the Copyright law to enforce an expired patent. In its reply to plaintiff's Cross-Motion for Summary ...

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