Digital Commons Network^™

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 …

Domain Names As Jurisdiction-Creating Property In Sweden, Ulf Maunsbach, Michael Bogdan

Ulf Maunsbach

No abstract provided.

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 …

Marks Of Mayhem & Murder: When A Few Bad "Mongols" Spoil The Bunch, Should The Government Seize A Motorcycle Association's Registered Trademark?, Tracy L. Reilly

Tracy Reilly

The “Spiritual Temperature” Of Contemporary Popular Music: An Alternative To The Legal Regulation Of Death-Metal And Gangsta-Rap Lyrics, Tracy Reilly

Tracy Reilly

Trips And Technology Transfer, Hans Henrik Lidgard

Hans Henrik Lidgard

No abstract provided.

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Harmony And Its Functionality: A Gloss On The Substantial Similarity Test In Music Copyrights, Sergiu Gherman

Sergiu Gherman

When determining whether two musical works are substantially similar, should the basic harmony in the plaintiff’s composition be deemed protectable under the copyrights law? I argue that it should not, and offer a new paradigm for reevaluation of the role the harmony plays in the substantial similarity test. I argue that the basic tonal-functional harmonic progressions should be unprotectable as a matter of law, because those progressions constitute a song’s functional feature. For example, a twelve-bar blues harmonic progression should be unprotectable not just because of the ubiquitous "public domain" argument, but because of the functional features the harmony possesses. …

Facebook 2 Blackberry And Database Trading Systems: Morphing Social Networking To Business Growth In A Global Recession, Roger M. Groves

Roger M. Groves

FACEBOOK 2 BLACKBERRY AND DATABASE TRADING SYSTEMS: MORPHING SOCIAL NETWORKING TO BUSINESS GROWTH IN A GLOBAL RECESSION Summary Facebook has now applications to the Blackberry Smartphone and IPhone. And Facebook has exploded internationally. If the Facebook social networking technology has applications to Blackberry, why not business? And as any business looks for growth, the market is not an existing heavily saturated United States, but a global market. Can the Facebook model of data sharing be customized to propel US technology firms into new international markets? This article claims the affirmative, through a multilateral clearing system, with credits and vouchers, as …

The Lisbon Agreement’S Misunderstood Potential, Daniel J. Gervais

Daniel J Gervais

This article focuses on the similarities and differences between the proposed TRIPS register of geographical indications for wines (and now spirits) and its relationship with the 1958 Lisbon Agreement on the Protection and Registration of Appellations or Origin. I examine the definitional differences between the two instruments top determine their commensurability. My suggestion is that the Lisbon register should be considered as a possible basis to establish the TRIPS register, with or without an extension to products other than wines and spirits. The differences between the two and deficiencies could be handled appropriately by adopting a protocol to the Lisbon …

The Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, Brian J. Love

Brian J. Love

This Article studies the Federal Circuit’s use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit’s professed rationale for doing so. Next, I demonstrate that this practice makes little …

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Michael W. Carroll

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …