Law Commons^™

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

The Role Of Patent Eligibility In Policing Claim Scope, Christopher M. Holman

Faculty Works

Bilski v. Kappos (Bilski II) empowered the lower courts to deploy patent eligibility as a doctrinal tool for policing claim scope. Because Bilski II leaves the test for patent eligibility largely undefined, the lower courts and PTO, in particular the Federal Circuit, could actively invoke the doctrine as a “wildcard” to invalidate patent claims deemed unduly broad, or otherwise “unworthy” by the court. Judge Rader made a similar observation recently with respect to the Lilly written description requirement, another doctrine of patentability for which the criteria for compliance remains largely undefined. However, early indications suggest that the Federal Circuit and …

Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete …

Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison

Articles

The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue …

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

Digital Multi-Media And The Limits Of Privacy Law, Jacqueline D. Lipton

Articles

While digital video and multi-media technologies are becoming increasingly prevalent, existing privacy laws tend to focus on text-based personal records. Individuals have little recourse when concerned about infringements of their privacy interests in audio, video, and multi-media files. Often people are simply unaware that video or audio records have been made. Even if they are aware of the existence of the records, they may be unaware of potential legal remedies, or unable to afford legal recourse. This paper concentrates on the ability of individuals to obtain legal redress for unauthorized use of audio, video and multi-media content that infringes their …

Grey Literature In Library And Information Studies, Dominic J. Farace, Joachim Schöpfel

Copyright, Fair Use, Scholarly Communication, etc.

CONTENTS

Introduction Grey Literature (Farace and Schöpfel)

Part I – Producing, Processing, and Distributing Grey Literature

Section One: Producing and Publishing Grey Literature

Chapter 1 Grey Publishing and the Information Market: A New Look at Value Chains and Business Models (Roosendaal)

Chapter 2 How to assure the Quality of Grey Literature: the Case of Evaluation Reports (Weber)

Chapter 3 Grey Literature produced and published by Universities: A Case for ETDs (Južni)

Section Two: Collecting and Processing Grey Literature

Chapter 4 Collection building with special Regards to Report Literature (Newbold and Grimshaw)

Chapter 5 Institutional Grey Literature in the University Environment …

Privilege And Property: Essays On The History Of Copyright, Ronan Deazley, Martin Kretschmer, Lionel Bently

Copyright, Fair Use, Scholarly Communication, etc.

Includes sixteen essays on the origins of copyright.

First paragraph:

What is Copyright History?

History has normative force. There was no history of colonialism, gender, fashion or crime until there were contemporary demands to explain and justify certain values. During much of the twentieth century, ‘copyright’ history (the history of legal, particularly proprietary, mechanisms for the regulation of the reproduction and distribution of cultural products – as opposed to the history of art, literature, music, or the history of publishers and art-sellers) was not thought of as a coherent, or even necessary field of inquiry. It was a pursuit of …

Unstandard Standardization: The Case Of Biology, Arti K. Rai

Faculty Scholarship

How applicable are the approaches adopted by information and communication technology standards-setting organizations to biological standards? Most engineering-based industries construct products from standard, well understood components. By contrast, despite the early attachment of the moniker “genetic engineering” to biotechnology, standardization in the biological sciences has been relatively rare.

Following The Direction Of Traffix: Trade Dress Law And Functionality Revisited, Amy B. Cohen

Faculty Scholarship

For much of American history, in order to promote competition among the producers of useful products, the law did not grant protection to the design of such products unless the design met the demanding requirements for patent or copyright protection. In the 1980s, an expansion of trade dress law resulted in protection of product designs, with the courts relying primarily on the functionality doctrine to preserve the interest in competition. The functionality doctrine, however, riddled by ambiguity and conflicting interpretations, was not effective in preventing overly broad protection of the designs of useful products. As a result, more and more …

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Articles & Book Chapters

This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …

The Expansion Trajectory: Trademark Jurisprudence In The Modern Age, Kenneth L. Port

Faculty Scholarship

American trademark law is expanding. The expansion began with the adoption of

the Lanham Act in 1947. At that time and ever since, commentators and law makers

alike referred to the Lanham Act as a codification of the existing common law. In fact,

this codification was a selection and expansion of the common law. The United States

has continued to expand trademark jurisprudence: from incontestability, to cybersquatting,

to dilution - the notion of what it means to protect a trademark has

continued to expand. During this time, the Commerce Clause on which American

federal trademark protection is based has not …

The Evolution Of Trade Secret Law And Why Courts Commit Error When They Do Not Follow The Uniform Trade Secrets Act, Sharon Sandeen

Faculty Scholarship

In the spring of 2010, the Hamline Law Review hosted a symposium to mark the thirtieth anniversary of the adoption of the Uniform Trade Secrets Act. This article was written for the symposium and provides an exhaustive and detailed account of the historical context and drafting history of the Uniform Trade Secrets Act (the UTSA).

Among other stories that it tells, the article explains that the UTSA was prompted by the “Erie/Sears/Compco squeeze.” Because of the Supreme Court’s famous decision in Erie R.R. Co. v. Tompkins in 1938, it was understood by business interests and their attorneys that the common …

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Articles

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon

Faculty Scholarship

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …

The Rhetoric Of Intellectual Property: Copyright Law And The Regulation Of Digital Culture, By Jessica Reyman (Book Review), Jessica Silbey

Faculty Scholarship

A short book review of Jessica Reyman’s, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture.