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Articles 1 - 30 of 41
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Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat
Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat
Faculty Scholarship
This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.
By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …
Are Developing Countries Playing A Better Trips Game, Peter K. Yu
Are Developing Countries Playing A Better Trips Game, Peter K. Yu
Faculty Scholarship
The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement.
Utilizing game theory and game metaphors, this Article disaggregates the "TRIPS game" into five different mini-games: …
Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon
Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon
Faculty Scholarship
Justice Breyer began his classic article, The Uneasy Case for Copyright, with a line from Lord Macaulay, that copyright is "'a tax on readers for the purpose of giving a bounty to writers.'" Our society and its law values both writers and readers; the law cannot favor one side too much without losing some of the benefits the other side could have contributed. Make reading expensive and it will decrease, and readers might substitute less socially productive behaviors to take its place.
The Trips Enforcement Dispute, Peter K. Yu
The Trips Enforcement Dispute, Peter K. Yu
Faculty Scholarship
2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.
After more than a decade of implementation, these provisions finally became the subject of a dispute before …
Six Secret (And Now Open) Fears Of Acta, Peter K. Yu
Six Secret (And Now Open) Fears Of Acta, Peter K. Yu
Faculty Scholarship
In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.
Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already …
Digital Copyright And Confuzzling Rhetoric, Peter K. Yu
Digital Copyright And Confuzzling Rhetoric, Peter K. Yu
Faculty Scholarship
The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists …
The Case For A Limited Protection Of Trademark Merchandising, Irene Calboli
The Case For A Limited Protection Of Trademark Merchandising, Irene Calboli
Faculty Scholarship
Since its judicial creation in the 1970s, strong controversy has surrounded the practice of trademark merchandising. Trademark scholars have generally opposed merchandising rights because of the departure from the traditional interpretation of trademark law - protecting consumers and market competition-in favor of a direct protection of trademark value. Despite this opposition, courts and Congress have favored the acceptance of this practice by broadening the scope of trademark protection and by introducing the concept of confusion as to the products' "sponsorship" or "affiliation" as part of the standard for trademark infringement. Not surprisingly, trademark scholars have criticized these developments but have …
Trips Enforcement And Developing Countries, Peter K. Yu
Trips Enforcement And Developing Countries, Peter K. Yu
Faculty Scholarship
In January 2009, the WTO Dispute Settlement Body released a panel report on China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights. The dispute concerned the inadequacy of protection and enforcement of intellectual property rights in China under the TRIPS Agreement. While both China and the United States were quick to declare victory in this dispute, less developed countries might have become the dispute’s unintended and unannounced winner.
As part of the symposium on the Anti-counterfeiting Trade Agreement (ACTA) and international intellectual property enforcement, this Article focuses on the implications of this panel report for less developed …
Trips And Its Achilles' Heel, Peter K. Yu
Trips And Its Achilles' Heel, Peter K. Yu
Faculty Scholarship
Written for the "15 Years of TRIPS Implementation" Symposium, this article examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.
The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade …
Sinic Trade Agreements, Peter K. Yu
Sinic Trade Agreements, Peter K. Yu
Faculty Scholarship
In the past decade, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. What are the strengths and weaknesses of these agreements? Are China's bilateral and regional trade agreements different from these agreements? What are China's goals and negotiation strategies? What will happen if China's bilateral approach clashes with that of the European Union or the United States?
This Article begins by examining China's growing engagement with the less developed world, in particular Africa, Latin America and Southeast Asia. It analyzes the goals, strengths and weaknesses of EU economic partnership …
United States Response To Questionnaire Concerning Boundaries And Interfaces With Respect To Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, Lita Helman, Philippa Loengard, Eva Subotnik, Elana Bensoul
United States Response To Questionnaire Concerning Boundaries And Interfaces With Respect To Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, Lita Helman, Philippa Loengard, Eva Subotnik, Elana Bensoul
Faculty Scholarship
ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.
Joining Or Changing The Conversation - Catholic Social Thought And Intellectual Property, Frank Pasquale
Joining Or Changing The Conversation - Catholic Social Thought And Intellectual Property, Frank Pasquale
Faculty Scholarship
No abstract provided.
On Nontraditional Trademarks, Kenneth L. Port
On Nontraditional Trademarks, Kenneth L. Port
Faculty Scholarship
This piece regards nontraditional trademarks like sound, color, scent or even the vertical opening motion of a Lamborghini car door. The protection of trademarks has, historically, walked a fine balance. Naturally, as a society, we want to protect trademarks so that transaction costs are lowered as purchasers make a quick and easy purchasing decision. You see Tide, you know Tide, you buy Tide. However, the protection of nontraditional trademarks upsets this fine balance. If we go too far in the protection we grant unwarranted monopolies to companies to stifle the precise competition the law was meant to encourage. Sometimes, we …
Commercial Or Advertising Purpose Under Florida Statutes Section 540.08 Demystified, Michael L. Richmond
Commercial Or Advertising Purpose Under Florida Statutes Section 540.08 Demystified, Michael L. Richmond
Faculty Scholarship
No abstract provided.
Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung
Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung
Faculty Scholarship
No abstract provided.
Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller
Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller
Faculty Scholarship
This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations. Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future. The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …
Joining Or Changing The Conversation? Catholic Social Thought And Intellectual Property, Frank Pasquale
Joining Or Changing The Conversation? Catholic Social Thought And Intellectual Property, Frank Pasquale
Faculty Scholarship
No abstract provided.
The Elephantine Google Books Settlement, James Grimmelmann
The Elephantine Google Books Settlement, James Grimmelmann
Faculty Scholarship
The genius—some would say the evil genius—of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy—a new way to concentrate an intellectual property industry.
In this essay, I will argue for the critical importance of seeing the settlement all at …
Three Theories Of Copyright In Ratings, James Grimmelmann
Three Theories Of Copyright In Ratings, James Grimmelmann
Faculty Scholarship
Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ratings …
Open Letter To Director David Kappos Of The United States Patent And Trademark Office, Kenneth L. Port
Open Letter To Director David Kappos Of The United States Patent And Trademark Office, Kenneth L. Port
Faculty Scholarship
I appreciate the opportunity to respond to the Request for Comments on the extent to which small businesses may be harmed by litigation tactics by corporations‟ attempts to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner; the best use of Government services to protect trademarks and prevent counterfeiting; and appropriate policy recommendations.
The PTO should be commended for considering whether the use of trademark litigation as a form of “bullying” is a problem for the U.S. trademark system. While some consider trademark litigation as a justifiable effort to police marks …
Patent Law And The Duty Of Candor: Rethinking The Limits Of Disclosure, Jay Erstling
Patent Law And The Duty Of Candor: Rethinking The Limits Of Disclosure, Jay Erstling
Faculty Scholarship
No abstract provided.
Testing As Commodification, Katharine B. Silbaugh
Testing As Commodification, Katharine B. Silbaugh
Faculty Scholarship
In this Essay, the author addresses criticism of the testing movement by education experts such as Jonathan Kozol. She explores the similarities in the discourses of philosophical discussions of commodification and behavioural economic discussions of intrinsic motivations. One conclusion that the author draws is that the comparison between the testing movement and commodification literature is not perfect, but they have both been counted, compared and measured, and flattened or thinned out of values.
'We Know It When We See It': Intermediary Trademark Liability And The Internet, Stacey Dogan
'We Know It When We See It': Intermediary Trademark Liability And The Internet, Stacey Dogan
Faculty Scholarship
The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries — those with a core business model unrelated to infringement — have an obligation to address infringement upon notice, but need not go out of …
Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
Faculty Scholarship
Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign …
Who’S Afraid Of The Federal Circuit?, Arti K. Rai
Who’S Afraid Of The Federal Circuit?, Arti K. Rai
Faculty Scholarship
In this brief Essay, Professor Rai responds to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit …
How Trade Secrecy Law Generates A Natural Semicommons Of Innovative Know-How, Jerome H. Reichman
How Trade Secrecy Law Generates A Natural Semicommons Of Innovative Know-How, Jerome H. Reichman
Faculty Scholarship
No abstract provided.
A Compensatory Liability Regime To Promote The Exchange Of Microbial Genetic Resources For Research And Benefit Sharing, Jerome H. Reichman
A Compensatory Liability Regime To Promote The Exchange Of Microbial Genetic Resources For Research And Benefit Sharing, Jerome H. Reichman
Faculty Scholarship
No abstract provided.
Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey
Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey
Faculty Scholarship
This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …
The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson
The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson
Faculty Scholarship
The pharmaceutical and medical device industries use billions of dollars to support the biomedical science that physicians, regulators, and patients use to make healthcare decisions—the decisions that drive an increasingly large portion of the American economy. Compelling evidence suggests that this industry money buys favorable results, biasing the outcomes of scientific research. Current efforts to manage the problem, including disclosure mandates and peer reviews, are ineffective. A blinding mechanism, operating through an intermediary such as the National Institutes of Health, could instead be developed to allow industry support of science without allowing undue influence. If the editors of biomedical journals …
The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster
The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster
Faculty Scholarship
The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …