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Articles 1 - 30 of 50
Full-Text Articles in Law
Competition For Innovation, Herbert J. Hovenkamp
Competition For Innovation, Herbert J. Hovenkamp
All Faculty Scholarship
Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.
Antitrust has …
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
All Faculty Scholarship
A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …
Parody As Brand, Stacey Dogan, Mark Lemley
Parody As Brand, Stacey Dogan, Mark Lemley
Faculty Scholarship
Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Faculty Scholarship
It is widely argued that so-called “patent trolls” are corrupting the U.S. patent system and endangering technology innovation and commercialization at large. For example, a recent White House report argued that “trolls” hurt firms of all sizes and advocated for specific policies aimed at curtailing practices thought to be particularly harmful. Yet the existence and extent of any systematic effects of so-called “troll-like” behavior, and the implications of modern patent assertion practices by Non-Practicing Entities (“NPEs”), remains unclear. This article develops novel empirical evidence to inform the debate over NPEs on patent litigation. Specifically, we conduct a large-scale empirical analysis …
Global Patents: Limits Of Transnational Enforcement, Marketa Trimble
Global Patents: Limits Of Transnational Enforcement, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the University of Macerata on November 6, 2013. The presentation discussed the increase in transnational patent litigation and what governments must do to protect patent owners in a globalized economy.
Patent Value And Citations: Creative Destruction Or Strategic Disruption?, David S. Abrams, Ufuk Akcigit, Jillian Popadak
Patent Value And Citations: Creative Destruction Or Strategic Disruption?, David S. Abrams, Ufuk Akcigit, Jillian Popadak
All Faculty Scholarship
Prior work suggests that more valuable patents are cited more and this view has become standard in the empirical innovation literature. Using an NPE-derived dataset with patent-specific revenues we find that the relationship of citations to value in fact forms an inverted-U, with fewer citations at the high end of value than in the middle. Since the value of patents is concentrated in those at the high end, this is a challenge to both the empirical literature and the intuition behind it. We attempt to explain this relationship with a simple model of innovation, allowing for both productive and strategic …
Translating Intellectual Property Into Economic Outcomes, Singapore Management University
Translating Intellectual Property Into Economic Outcomes, Singapore Management University
Perspectives@SMU
Many nations are struggling with the same challenge – how to convert their upstream R&D investments into growth elements of their national economies.
12th Annual Conference On Recent Developments In Ip Law And Policy, William T. Gallagher, Marc H. Greenberg
12th Annual Conference On Recent Developments In Ip Law And Policy, William T. Gallagher, Marc H. Greenberg
Intellectual Property Law
Program booklet and handouts for the IP Law Center at Golden Gate University School of Law's 12th Annual Conference on Recent Developments in IP Law and Policy.
Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp
Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel
Akron Law Faculty Publications
On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.
Led by the moderator, participants at the Forum focused generally on three broad …
Trademark Morality, Mark Bartholomew
Trademark Morality, Mark Bartholomew
Journal Articles
This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly …
Innovation, Inequality, And The Commercialization Of Academic Research, Walter Valdivia
Innovation, Inequality, And The Commercialization Of Academic Research, Walter Valdivia
Brookings Scholar Lecture Series
Patent policy is rarely debated in relation to its distributive consequences. In particular, the Bayh-Dole Act has been discussed in terms of its effects on the pace of innovation or the organization of science. However, this lecture re-assesses this policy from the perspective of a fair distribution of resources, both those committed to and those created by research-based innovation. Specifically, examining the management of university’s intellectual property, Valdivia will identify the institutional arrangements that reinforce a very asymmetric distribution of political and economic resources among universities and then characterize subtle but important links between these inequalities and the social distribution …
Advancing Ip Policy Through Conflict Of Laws Rules, Marketa Trimble
Advancing Ip Policy Through Conflict Of Laws Rules, Marketa Trimble
Boyd Briefs / Road Scholars
Prof. Marketa Trimble gave her presentation Advancing IP Policy through Conflict of Laws Rules at the IP Scholar Conference held August 8-9, 2013 at Cardozo School of Law.
Competition Policy And The Patent System, Herbert J. Hovenkamp
Competition Policy And The Patent System, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …
Intellectual Property Reform In Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens On Internet Service Providers That Unnecessarily Restrict Access To Information And Freedom Of Expression Of The People Of Colombia, Glushko-Samuelson Intellectual Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia
Intellectual Property Reform In Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens On Internet Service Providers That Unnecessarily Restrict Access To Information And Freedom Of Expression Of The People Of Colombia, Glushko-Samuelson Intellectual Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia
Joint PIJIP/TLS Research Paper Series
No abstract provided.
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
Scholarship Chronologically
This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of “harm” (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …
Intellectual Property Reform In Colombia: The Colombian Legislature Must Consider Local And International Conventions And Pass Balanced Copyright Legislation That Preserves The Fundamental Rights Of All Colombians, Glushko-Samuelson Intellectaul Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia
Intellectual Property Reform In Colombia: The Colombian Legislature Must Consider Local And International Conventions And Pass Balanced Copyright Legislation That Preserves The Fundamental Rights Of All Colombians, Glushko-Samuelson Intellectaul Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia
Joint PIJIP/TLS Research Paper Series
No abstract provided.
Harm To Competition Or Innovation, Herbert J. Hovenkamp
Harm To Competition Or Innovation, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …
Innovation And Competition Policy, Chapter 6 (2d Ed): Restraints On Innovation, Herbert J. Hovenkamp
Innovation And Competition Policy, Chapter 6 (2d Ed): Restraints On Innovation, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …
Competition Policy And The Scope Of Intellectual Property Protection, Herbert J. Hovenkamp
Competition Policy And The Scope Of Intellectual Property Protection, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …
Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble
Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble
Scholarly Works
The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …
Notice Failure And Notice Externalities, Michael J. Meurer, Peter Menell
Notice Failure And Notice Externalities, Michael J. Meurer, Peter Menell
Faculty Scholarship
Economic theory suggests that notice plays a critical role in resource development. Resource developers will be disinclined to make significant investments without reasonable confidence that their projects will not violate the rights of others. Land rights systems and institutions generally provide reliable notice at relatively modest cost, enabling exclusionary rights to encourage efficient real estate development. Property boundaries, right structures, and neighbors with whom resource developers might have to negotiate conflicts can usually be ascertained relatively easily. Furthermore, zoning institutions generally provide relatively prompt, low cost, and reliable dispute resolution before developers need to expend substantial resources. Therefore, land claims …
Intellectual Property And Employee Selection, Elizabeth A. Rowe
Intellectual Property And Employee Selection, Elizabeth A. Rowe
UF Law Faculty Publications
In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …
Demanding The Angels’ Share: Intellectual Property And Spiritual Organization In The Urantia Foundation, Andrew Ventimiglia
Demanding The Angels’ Share: Intellectual Property And Spiritual Organization In The Urantia Foundation, Andrew Ventimiglia
Studio for Law and Culture
This article explores the role that intellectual property plays as it shapes the circulation and use of ‘The Urantia Book,’ a divinely revealed text published in 1955 and embraced by a community of believers. For many modern spiritual communities – of which the Urantian community is a telling example – their coherence no longer lies in a centralized institution like the church but instead in a shared dedication to sacred texts and other religious media. Thus, intellectual property has become an effective means to administer the ephemeral beliefs and practices mediated by these texts. This article explores a number of …
Private Rights For The Public Good?, J. Janewa Oseitutu
Private Rights For The Public Good?, J. Janewa Oseitutu
Faculty Publications
The counterfeit medicines discussion is an example of how the use of a turbid rationale for greater intellectual property protections serves sophisticated private interests while potentially harming the public interest. The risk of harm created by counterfeit medicines provides a compelling counter-narrative to the access to medicines critique of intellectual property rights.
Intellectual property advocates and the pharmaceutical industry have portrayed poor global enforcement of intellectual property rights as contributing to the proliferation of dangerous counterfeit medications. Yet, the deliberate linkage in the literature between weak intellectual property rights and the harms caused by counterfeit medicines provides a justification for …
The Competitive Advantage Of Weak Patents, William Hubbard
The Competitive Advantage Of Weak Patents, William Hubbard
All Faculty Scholarship
Does U.S. patent law increase the competitiveness of U.S. firms in global markets? This Article argues that, contrary to the beliefs of many U.S. lawmakers, U.S. patent law currently undermines the ability of U.S. firms to compete in global markets because strong U.S. patent rights actually weaken an overlooked but critical determinant of U.S. competitiveness: rivalry among U.S. firms. Intense domestic rivalry drives firms to improve relentlessly, spawns related and supporting domestic industries, and encourages the domestic development of advanced factors of production—like specialized labor forces. U.S. patents restrict rivalry among foreign firms less because U.S. patents have little extraterritorial …
The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R. K. Stroud
The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R. K. Stroud
Articles in Law Reviews & Journals
No abstract provided.
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Law Faculty Publications
Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection ofthe information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that …
Patent Invalidity Versus Noninfringement, Roger Allen Ford
Patent Invalidity Versus Noninfringement, Roger Allen Ford
Law Faculty Scholarship
Most patent scholars agree that the Patent and Trademark Office grants too many invalid patents and that these patents impose a significant tax upon industry and technological innovation. Although policymakers and scholars have proposed various ways to address this problem, including better ex ante review by patent examiners and various forms of ex post administrative review, district courts invalidating patents in litigation remain a core defense against bad patents. This article analyzes a previously unidentified impediment to the use of district courts to invalidate patents. Nearly every patent lawsuit rises or falls on one of two defenses: invalidity or noninfringement. …
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel
Law Faculty Scholarship
On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …