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Intellectual Property Law Hybridization, Clark D. Asay
Intellectual Property Law Hybridization, Clark D. Asay
University of Colorado Law Review
Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. Conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between copyright and patent laws finds some support in the distinction between "authors" and "inventors," as well as that between "writings" and "discoveries," in the U.S. Constitution's Intellectual Property Clause. And Congress, courts, and scholars have largely perpetuated the divide in separately enacting, interpreting, and analyzing copyright and patent laws …
Food For Thought: Genetically Modified Seeds As De Facto Standard-Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan Vacca
Food For Thought: Genetically Modified Seeds As De Facto Standard-Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan Vacca
University of Colorado Law Review
For several years, courts have improperly calculated damages in cases involving the unlicensed use of genetically modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent's status as a de facto standard-essential patent. To be classified as a de facto standard-essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, (2) impracticability, …