Digital Commons Network^™

Orphans In Turmoil: How A Legislative Solution Can Help Put The Orphan Works Dilemma To Rest, Vicenç Feliú

Vicenç Feliú

The orphan works issue has continued to grow in the U.S. despite strong efforts to find a workable solution. Stake holders on both sides of the issue have proposed and opposed solutions and compromises that could have alleviated the problem, and we are still no closer to an agreement. This paper posits that the solutions offered in the proposed legislation of 2006 and 2008 provide a strong working foundation for a legislative answer to the issue. To make that answer workable, a new legislative effort would have to take into account the questions raised by stakeholders to the previous legislative …

Dissymmetry Of Intervening Rights In The Aia And Marine Polymer, Juan Villar

Juan Villar

No abstract provided.

The Evolution Of Intellectual Property Protections In The People’S Republic Of China: Is There An Enforcement Problem?, William Mcguire, Michael Wotherspoon

William McGuire

No abstract provided.

The New Law Of Ideas, Robert Denicola

Robert C Denicola

The New Law of Ideas Robert C. Denicola Most businesses run on ideas—ideas for new products, new production methods, and new marketing strategies. Since at least the middle of the last century rights in ideas have been analyzed under a body of law that came to be called “the law of ideas.” Dominated by contract principles, the law of ideas also subsumed an array of additional theories regularly invoked to protect idea merchants, including property-based causes of action such as conversion and misappropriation, quasi-contractual claims premised on unjust enrichment, and claims alleging breaches of confidence, fiduciary duty, and loyalty. Texas …

Intellectual Property Rights Protection In The Field Of E-Learning, Mohamed S. Asadek Dr.

Mohamed S Abdel Sadek

No abstract provided.

, Mohamed S. Asadek Dr.

Mohamed S Abdel Sadek

No abstract provided.

Intellectual Property Rights Protection In The Field Of E-Learning, Mohamed S. Asadek

Mohamed S Abdel Sadek

In the field of providing e-learning services, educational institutions often deal with protected works in accordance with intellectual property regulations. This dealing, from our point of view, does not go beyond three assumptions: The first assumption: The educational institution is the owner of the rights contained in those works, whether due to preparing it within the framework of collective works, or due to purchasing the financial rights contained in them. The second assumption: The educational institution legitimately use the protected works for the purpose of educational illustration, or for the purpose of criticism and analysis, without the need to obtain …

Inhibiting Patent Trolling: A New Approach For Applying Rule 11, Eric J. Rogers, Young Jeon

Eric J Rogers

The existing Rule 11 of the FRCP can be immediately harnessed to help solve the patent troll, nuisance-lawsuit problem. Currently there is the perception that too many litigious entities, commonly referred to as “patent trolls,” are creating too much dead-weight economic waste in society. The popular view is that there has been an alarming rise in the number of patent trolls that make no products but try to monetize patents by filing dubious patent infringement lawsuits merely to extract money from commercially productive companies that actually make products and use technologies for society’s benefit. Defining “patent troll” is probably too …

Rebuttable Presumption Of Public Interest In Protecting The Public Health—The Necessity For Denying Injunctive Relief In Medically Related Patent Infringement Cases After Ebay V. Mercexchange, Lance E. Wyatt Jr.

Lance E Wyatt Jr.

The public’s interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court’s holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies. Unfortunately, this has not been the course that …

Finding The Point Of Novelty In Software Patents, Bernard H. Chao

Bernard H Chao

The issue of patentable subject matter eligibility is in considerable flux. In 2012, the Supreme Court set forth a confusing new framework for determining patent eligibility. The decision in Mayo v. Prometheus cast serious doubt on the continued viability of many software patents. Indeed, a split quickly emerged in the Federal Circuit. As a result, it was unclear whether adding computer limitations to an otherwise unpatentable concept somehow renders the concept patent eligible. In an attempt to settle this question, the Federal Circuit granted a petition to rehear CLS Bank Int’l en banc. But the judges could not find common …

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …

Slaves To Copyright: Branding Human Flesh As A Tangible Medium Of Expression, Arrielle S. Millstein

Arrielle S Millstein

This paper argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this paper demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

Reports Of Its Death Are Greatly Exaggerated: Ebay, Bosch, And The Presumption Of Irreparable Harm In Hatch-Waxman Litgation, Kenneth C. Louis

Kenneth C. Louis

No abstract provided.

Emerging Contentions And Comprehensive Look Into Trends In Ipr And Pharmaceutical Drugs With Special Reference To Accesibility And Inovation, Preetima Tewari

preetima tewari

While the core issue for humanities is their health protection from life threatening diseases, whereas, on the contrary, the key players, in trading the newly innovated drugs play an important role in disseminating the knowledge use with advantage of the new drugs but it is easy said than done. There are a number of compulsory economic constraints from a period commencing from manufacturing to the process of distribution to the end users (ailing people) especially affected are those inhabiting in the developing or least developed countries. At this juncture the role of TRIPS and IPR may play a quintessential role, …

Perkinelmer Inc. V. Intema Ltd. And Patent-Eligibility Of Diagnostic Screening Methods After Mayo V. Prometheus, John Ye

John Ye

In December 2011, the Supreme Court issued its ruling in Mayo v. Prometheus,[1] reversing the Federal Circuit based on unpatentable subject matter in a diagnostic method patent. In Mayo, the patent disclosed a method for determining the correct drug dosage based on the drug’s metabolite in a patient’s blood. The method was declared patent-ineligible because instead of teaching an application of laws of nature, the teachings only directed doctors to “apply it” - all disguised under the conventional steps such as “administering”, “measuring” and “determining” [2].

Following the Court’s holding, the Federal Circuit in November 2012 …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Patent Trolls Among Us, Kent R. Acheson

Kent R Acheson

As Acheson (2012) suggested in A Study of the Need to Change United States Patent Policy, software should not be patented, but the Intellectual Property Rights should be protected in another manner that does not entail a Copyright, Trademark, or secrecy. A new form of protection should be created based on certain criteria, such as useful life of a patent, incremental innovation, value to society, and or value to life.

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Griffin M. Barnett

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

Decoding And Resisting Culture: Reception Theory And Copyright Law, Meghan M. Lydon Ms.

Meghan M. Lydon Ms.

Though there has been much academic treatment of the author’s role in copyright law, few academic articles have been published about the reader’s role. Of those articles, only one has examined copyright law through the lens of reader response theory. In her article “Everything is Transformative: Fair Use and Reader Response,” 31 Colum. J.L. & Arts 445, Laura Heyman relied on English professor Stanley Fish’s famous reader response theory to argue that all works are transformative because readers naturally interpret texts from their own perspectives and that copyright law’s transformative use test should measure the use that a community of …

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

Social Media And Our Misconceptions Of The Realities, Richard Sanvenero Jr.

Richard Sanvenero Jr.

This article will review the current laws of the expectations of privacy under the two-pronged Katz test, and more specifically other cases that the courts have tried to interpret the test as applicable to social media such as Facebook, Instagram, Twitter, and e-mail. Since there seems to be “no light at the end of the tunnel” with any uniform decision within the courts on the Fourth Amendment protections against search and seizure when there is a reasonable expectation of privacy with social media. This reasonable expectation standard is developed by the users themselves who will allow their rights to be …

Difficulties With The Interordinal Laws Of Cultural Property As Applied In The United States, And Proposed Solutions, Jeffrey Miles

Jeffrey John Miles

This paper seeks to sketch the contours of the interordinal web of the current laws, and delineate problem areas where the law fails to reach as well as the areas where law exists, yet remains misapplied. In doing so, I am hoping to continue the dialectic begun by Alexander Bauer in his 2008 piece, New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates[i] as well as borrow some inspiration from the interordinal analysis applied by Gordillo in his groundbreaking recent work, Interlocking Constitutions.[ii]

This is a top-down perspective, with less attention to …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Copyright Tussle And Search Engines, Anoop Kumar Yadav

anoop kumar yadav

The Intellectual Property Laws (I.P. Laws) have, to a great extent, proved to be successful in nipping the copyright infringement in its bud. The I.P. Laws provide umbrella jurisprudence, which seek to protect the creativity of the authors. But despite that, it has been widely observed that the I.P. Laws have failed to cover other aspects of the intellectual property. For example, the liability of the search engines for the copyright infringement has remained out of the ambit of the I.P. Laws. The paper is focused on drawback of the Information Technology laws in various nations. Further, it also suggests …

Do Trademark Lawyers Matter?, Deborah R. Gerhardt

Deborah R Gerhardt

DO TRADEMARK LAWYERS MATTER? Deborah R. Gerhardt Jon P. McClanahan This Article empirically examines whether lawyers make a difference in prosecuting trademark applications, and if so, how much. Working from a wealth of data the USPTO released in 2012, we examine the twenty-five year period of 1985-2010 to determine how much legal counsel matters in various stages of the trademark application process. First, we show how trademark publication and registration rates changed. Against that background, we examine how these rates differ if the applicant had legal counsel. By illustrating these differences over time, we show whether the USPTO has become …

Fixing Frand: A Pseudo-Pool Approach To Standards-Based Patent Licensing, Jorge Contreras

Jorge L Contreras

Technical interoperability standards are critical elements of mobile telephones, laptop computers, digital files, and thousands of other products in the modern networked economy. Most such standards are developed in so-called voluntary standards-development organizations (SDOs) that require participants to license patents essential to the standard on terms that are “fair, reasonable and non-discriminatory” (FRAND). FRAND commitments are thought to avoid the problem of patent hold-up: the imposition of excessive royalty demands after a standard has been widely adopted in the market. While, at first blush, FRAND commitments seem to assure product vendors that patents will not obstruct the manufacture and sale …

Desktop Piracy Factories: Will Existing Law Be Enough?, Andrew J. Daddono

Andrew J Daddono

A brief essay on how the disruptive technology found in 3D printing will affect the future of our existing legal regimes for intellectual property, what foreseeable problems there are, and possible ways that we may address them.

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …