Digital Commons Network^™

Repackaging, Pharmaceuticals, And The European Union: Managing Gray Markets In An Uncertain Legal Environment, Robert Bird

Robert C Bird

One of the most robust gray markets in the world is the parallel importation of pharmaceutical drugs in the European Union (EU). Drug manufacturers have tried to stop parallel importation with over thirty years of litigation. The result has applied. This manuscript examines the forces underlying the EU gray market for drugs, discusses how trademark law and not patent law has become the primary basis for legal challenges, and offers strategies for manufacturers to impede importers in a truly chaotic legal environment.

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear.

Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear.

Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear. Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

In The Wake Of Reinvigorated U.S. Supreme Court Activity In Patent Appeals, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Stifling Or Stimulating - The Role Of Gene Patents In Research And Genetic Testing, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Navigating Uncharted Waters: Intellectual Property Rights Surrounding Genomics Research & Development Information, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Collegiality And Collaboration In The Age Of Exclusivity, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

License To Sue? The Availability Of Declaratory Judgment Actions To Patent Licensees After Medimmune, Inc. V. Genentech, Inc., Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

The Countervailing Interests Of The Progression And Application Of Biotechnological Innovation Supporting The Modification Of Current Exclusionary Property Rights, Sebastian Ohanian

Sebastian Ohanian

This paper will describe current hurdles in stem cell research and determine the legal landscape necessary to facilitate advancements in the field with a specific emphasis on Moore v. Regents of the University of California, its progeny, and applicable federal policies. This article will begin with an introduction to the scientific significance of stem cells and the tools that scientists require to perform genetic research, describe the barriers impeding research, examine recent changes in policy, and propose modifications to policies to maximize growth in the field.

The Countervailing Interests Of The Progression And Application Of Biotechnological Innovation Supporting The Modification Of Current Exclusionary Property Rights, Sebastian Ohanian

Sebastian Ohanian

This paper will describe current hurdles in stem cell research and determine the legal landscape necessary to facilitate advancements in the field with a specific emphasis on Moore v. Regents of the University of California, its progeny, and applicable federal policies. This article will begin with an introduction to the scientific significance of stem cells and the tools that scientists require to perform genetic research, describe the barriers impeding research, examine recent changes in policy, and propose modifications to policies to maximize growth in the field.

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

Kids These Days: Teenage Sexting And How The Law Should Deal With It, Michael Parker

Michael R Parker

Since time immemorial members of the youngest generation have managed to create new and unique ways to offend and disgust their predecessors. The most recent of these is “sexting.” Sexting, the practice of sending or posting sexually suggestive text messages and images via cell phone or internet, is a new phenomenon which has recently gained significant momentum. In fact, according to a recent study, almost twenty-percent of all teens have participated. And although this new trend is socially acceptable amongst teenagers, the legislature has been slow, if not absent, in adapting legislation to address it. Almost every state continues to …

I, Thomas F. Cotter

Thomas F. Cotter

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …

P2p 'System Caching' – The Copyright Dilemma, Assaf Jacob, Zoe Argento

Assaf Jacob

This paper explores the legal ramifications of the prevalent Internet Service Provider practice of providing caching services to P2P network users. First, the paper describes the P2P industry, its benefits and drawbacks. Then the paper discusses several caching techniques that can be implemented, and indeed are implemented, by ISPs around the globe. These practices allow ISPs to provide clients with better services but, by the same token, expose them to copyright infringement suits by third parties. The article will discuss how copyright law should consider the costs and benefits to the public of P2P caching practices, especially in the application …

Ip And Antitrust: Errands Into The Wilderness, Herbert Hovenkamp

Herbert Hovenkamp

IP AND ANTITRUST: ERRANDS INTO THE WILDERNESS

ABSTRACT

Antitrust and intellectual property law both seek to promote economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust began an Errand into the Wilderness in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition-furthering goals of antitrust policy. Today, patent law has begun its …

Copyright Infringement And Harmless Speech, Christina Bohannan

Christina Bohannan

Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required …

Reconciling Fair Use And Trademark Use, Margreth Barrett

Margreth Barrett

This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two “use” doctrines …

The Sly Rabbit And The Three C’S: China, Copyright And Calligraphy, Marc H. Greenberg

Marc H. Greenberg

This article posits that among the many different methods being used to try to increase enforcement of Western style IP laws in China, that ultimately one of the most effective methods may be to support and aide the slow but steady shift in Chinese culture, away from a collective society view, and towards an individual ownership view – not reasons not based purely on economics, but also as a benefit from a cultural and social perspective – with broader support for the concept of individual rights and freedoms on a variety of fronts, and not just the IP arena. In …

Formation Of Invention/Joint Invention And Recognition Of Inventor/Joint Inventor, Kotaro Kageyama

Kotaro Kageyama

Abstract: Formation of Invention/Joint Invention and Recognition of Inventor/Joint Inventor Kotaro Kageyama There have not been clear criteria etc. to determine the formation of an invention and to recognize an inventor, especially those of a joint invention and joint inventors, not only in Japan but also the US and other countries. In this paper, the stages of the formation of an invention are divided into conception and its embodiment. The essence of the former is considered as "conception based on a principle," while the essence of the latter is as "establishment of a model." It is also suggested that an …

The Author's Rights In Literary And Artistic Works, Alina Ng

Alina Ng

This paper suggests that authorship and creativity, which necessarily precedes the production of literary and artistic works, are products of authentic human expression that the law must encourage in order for works, contributing to the progress of science and the useful arts, to be produced. While the commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand, encouraging the production of works for the commercial market may however result in works, which may lack social, educational and cultural value or utility. Natural law philosophy, which advocates a natural order for society and …

Noonan V. Staples: Libel Law’S Shocking New Precedent And What It Means For The Motion Picture Industry, Lindsee Gendron

Lindsee Blair Gendron

No abstract provided.

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Daniel J Gervais

Even as a mere conceptual cloud, the term “user-generated content” is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation—the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

Traditional Knowledge: Are We Closer To The Answers? The Potential Role Of Geographical Indications, Daniel J. Gervais

Daniel J Gervais

The debate concerning the protection of, and access to, “traditional knowledge” has been going on for some time. Academics, governments, non-governmental and intergovernmental organizations, and representatives of indigenous communities have made arguments on many different levels. The most interesting debates are normative in nature: What should international law do about traditional knowledge? Is protection desirable? To what end? Equally interesting is the somewhat more technical debate about how we can proceed to implement some of the (tentative) normative conclusions. The normative debate is situated at the confluence of intellectual property law, cultural studies, ethnology and anthropology. In this short paper, …

Utilitarian Information Works – Is Originality The Proper Lens?, Dana Beldiman

Dana Beldiman

As the information society advances, vastly increased numbers of utilitarian information works (UIW) are being produced. In general, these works are deemed protected by copyright law, even though the philosophical underpinnings of copyright law clash with the attributes of utilitarian information works. This article examines the cause for the uneasy relationship between utilitarian information works and the concept of “originality.”

Part I discusses the role of information and utilitarian information works as one of the core wealth-producing assets of the knowledge-based economy. This economy is characterized by a rapid pace of innovation, which in turn, requires unrestricted access to information. …

On Abstraction And Equivalence In Software Patent Doctrine: A Reply To Bessen, Meurer And Klemens, Andrew Chin

Andrew Chin

Recent books by Professors James Bessen and Michael Meurer and by economist Ben Klemens have argued that software warrants technology-specific treatment in patent doctrine. This article argues that the authors' categorical claims about software are unsupported by computer science, and therefore cannot support their sweeping proposals regarding software patents as a matter of law. Such proposals therefore remain subject to empirical examination and critique as policy choices, and are unlikely to be achieved through judicially developed doctrines.

Predictability And Patentable Processes: The Federal Circuit’S In Re Bilski Decision And Its Effect On The Incentive To Invent, William M. Schuster

William M. Schuster II

Throughout the past two centuries, the U.S. patent system has defined the scope of (potentially) patentable processes by proscribing patents on fundamental principles (including abstract ideas, laws of nature, and natural phenomena). Unfortunately, such a description of patentable subject matter led to ambiguity and unpredictability in the application of the patent laws. In 2008, the Federal Circuit addressed this uncertainty by promulgating a new standard to describe the ambit of patentable processes: a process may constitute patentable subject matter if (1) it utilizes a particular machine or apparatus, or (2) it transforms an object into a different state or thing. …

An Empirical And Consumer Psychology Analysis Of Trademark Distinctiveness, Thomas R. Lee

Thomas R Lee

This article analyzes the taxonomy of trademark distinctiveness that has long been endorsed in the courts and scholarly commentary. This distinctiveness scale is routinely justified on the basis of an assumption about consumer psychology: that consumers perceive suggestive, arbitrary, or fanciful marks as source-indicating, but see descriptive marks as “merely descriptive.” Although this core premise of trademark law is a fundamental matter of consumer psychology, it has never been subjected to scrutiny under the light of consumer psychology theory and empirical analysis. We offer a consumer psychology model for questioning the law of distinctiveness (or “source indication”) and then test …

The Social Contract And Authorship: Allocating Entitlements In The Copyright System, Alina Ng

Alina Ng

Political and moral philosophy teach that there are norms governing how individuals and states ought to behave to ensure a well functioning society. This paper argues that authorship is essentially an activity that can only occur when other individuals in society are constrained by particular moral and ethical norms, and when the copyright system is built on a theoretical framework where individuals in society agree to waive certain rights in order that authors may have the incentive to produce literary and artistic works. The law as it presently stands allocates entitlements without ethical or moral restraints on the exercise of …