Law Commons^™

More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg

William & Mary Law Review

Part I begins the inquiry by describing trademark’s connection with other consumer information laws. In many cases optimal trademark policy—by whatever criteria—depends on the state of play in another regime. This complicates trademark’s development in multiple ways. It is not simply a problem of determining how another body of law treats the related issue. Identifying the relevant parallel regime is not always easy. Indeed, sometimes the laws most pertinent to the production of consumer information are more general in nature—think, for example, of the role that simple trespass law plays in determining what we know about how our meat is …

Copyrighting The "Useful Art" Of Couture: Expanding Intellectual Property Protection For Fashion Designs, M. C. Miller

William & Mary Law Review

No abstract provided.

The Federal Circuit As A Federal Court, Paul R. Gugliuzza

William & Mary Law Review

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

The Changing Guard Of Patent Law: Chevron Deference For The Pto, Melissa F. Wasserman

William & Mary Law Review

Whereas Congress has increasingly turned to administrative agencies to regulate complex technical areas, the patent system has remarkably remained an outlier. In the patent arena, the judiciary— not a federal agency—is perceived to be the most important expositor of substantive patent law standards. Yet, as the criticism toward the patent system has grown, so too have the challenges to this unusual power dynamic. The calls for institutional reform culminated in late 2011 with the enactment of the historic Leahy-Smith America Invents Act (AIA). Although scholars have recognized that the AIA bestows a glut of new powers upon the United States …

Copyright Essentialism And The Performativity Of Remedies, Andrew Gilden

William & Mary Law Review

This Article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and poststructural theories of performativity, it argues that a court’s awareness of the likely remedy award in a particular dispute —combined with its normative view of how future actors should address similar disputes—“reaches back” and shapes the determination of the parties’ respective rights.

Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting the Second Circuit vacated a preliminary injunction against a …

What Is The "Invention"?, Christopher A. Cotropia

William & Mary Law Review

Patent law is in flux, with recent disputes and changes in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. Upon a closer look, however, many patent cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements over which “invention” the courts should be considering.

There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, in …

The Null Patent, Sean B. Seymore

William & Mary Law Review

Failure is the basis of much of scientific progress because it plays a key role in building knowledge. In fact, negative results compose the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information—whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results …

Rules For Patents, Michael J. Burstein

William & Mary Law Review

There is widespread agreement that the patent system in the United States is in need of reform. Most of the proposals for patent reform that have proliferated in recent years share two common assumptions: first, that patent policy is best made through case-bycase adjudication of the validity of individual patents; and, second, that the existing allocation of authority over patent policy, in which the courts are primarily responsible for interpreting and applying the broad language of the Patent Act, ought not to be disturbed. This
Article challenges both assumptions. I approach the problem of patent reform primarily as a problem …

Causing Damage Without Authorization: The Limitations Of Current Judicial Interpretations Of Employee Authorization Under The Computer Fraud And Abuse Act, Garrett D. Urban

William & Mary Law Review

No abstract provided.

The Wrong Tool For The Job: The Ip Problem With Noncompetition Agreements, Viva R. Moffat

William & Mary Law Review

This Article argues that employee noncompetition agreements ought to be unenforceable. It begins by recognizing that there is momentum for change in the law of noncompetes: a number of states and the American Law Institute (ALI) are in the process of reconsidering noncompete doctrine, and recent empirical studies provide evidence as to the mostly negative effects of the agreements. Existing critiques have focused on the problematic nature of noncompetes within the employment relationship. This Article synthesizes those critiques, adding support from empirical studies, and then examines noncompetes from a new perspective.

Commentators have neither recognized nor evaluated the role noncompetes …

First Amendment Based Copyright Misuse, David S. Olson

William & Mary Law Review

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan Devlin, Neel Sukhatme

William & Mary Law Review

Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Because much technological innovation occurs pursuant to significant expenditures—both in terms of upfront research and subsequent commercialization costs—inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process. This widely accepted principle comes with an important corollary: namely, that canons of …

Embedded Federal Questions, Exclusive Jurisdiction, And Patent-Based Malpractice Claims, Christopher G. Wilson

William & Mary Law Review

No abstract provided.

Economies Of Desire: Fair Use And Marketplace Assumptions, Rebecca Tushnet

William & Mary Law Review

At the moment that "incentives"for creation meet "preferences"for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance-even overabundance-in creativity can help define the proper scope of copyright law, especially …

The New Invention Creation Activity Boundary In Patent Law, Margo A. Bagley

William & Mary Law Review

This Essay identifies a new boundary in patent law-illegal or immoral invention creation activity-and explores the possible challenges and opportunities it may facilitate. The boundary currently is neither robust nor extensive, and whether and under what circumstances it should exist at all is open to debate.

Rules And Standards On The Forefront Of Patentability, John F. Duffy

William & Mary Law Review

No abstract provided.

Patent Examination Priorities, Michael J. Meurer

William & Mary Law Review

No abstract provided.

An Alternative Approach To Channeling?, Mark P. Mckenna

William & Mary Law Review

Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product's performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article's design that are dictated by function and to channel protection …

Administering Fair Use, Jason Mazzone

William & Mary Law Review

Fair use is not working. As written by Congress and applied by the courts, the fair use law fails to give individuals sufficiently clear guidance to determine in advance whether their uses of copyrighted works are fair and therefore noninfringing. When the law does not regulate adequately, markets can supply the rules. Thus, copyright owners and prospective users of copyrighted works can-and donegotiate over and enter into contracts specifying permissible uses. However, leaving fair use to the market is far from desirable. Fair use is not meant to be something that is sold and bought like other market goods. Fair …

Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie

William & Mary Law Review

No abstract provided.

Spillovers Theory And Its Conceptual Boundaries, Brett Frischmann

William & Mary Law Review

No abstract provided.

Introduction: The Boundaries Of Intellectual Property Symposium, I. Trotter Hardy

William & Mary Law Review

No abstract provided.

Trademarks And The Boundaries Of The Firm, Dan L. Burk, Brett H. Mcdonnell

William & Mary Law Review

Coase's theory of the firm has become a familiar tool to analyze the structure and organization of businesses. Such analyses have increasingly focused on property-based theories of the firm, including intellectual property. In previous work we have discussed the application of this model to patents, copyrights, and trade secrets. Here we take up the theory of the firm with regard to trademarks, which act as signals of firm reputation, and so have application and effects that differ substantially from other forms of intellectual property. Using the framework from our previous analyses, we examine the propensity of trademarks to lower transaction …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane Winn, Nicolas Jondet

William & Mary Law Review

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Socidte de l'Information" (DADVSI). ARMT is both …

Statutory Damages In Copyright Law: A Remedy In Need Of Reform, Pamela Samuelson, Tara Wheatland

William & Mary Law Review

No abstract provided.

Distinguishing Lost Profits From Reasonable Royalties, Mark A. Lemley

William & Mary Law Review

No abstract provided.

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

William & Mary Law Review

No abstract provided.

Harmonizing The Exclusionary Rights Of Patents With Compulsory Licensing, Troy L. Gwartney

William & Mary Law Review

No abstract provided.

A Realistic Approach To The Obviousness Of Inventions, Daralyn J. Durie, Mark A. Lemley

William & Mary Law Review

No abstract provided.

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa M. Davison

William & Mary Law Review

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of "technological protection measures "in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a …