Law Commons^™

Rebuttable Presumption Of Public Interest In Protecting The Public Health --The Necessity For Denying Injunctive Relief In Medically-Related Patent Infringement Cases After Ebay V. Mercexchange, Lance Wyatt

Chicago-Kent Journal of Intellectual Property

The public’s interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court’s holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies. Unfortunately, this has not been the course that …

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Competitive Patent Law, William Hubbard

All Faculty Scholarship

Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must "out-innovate . .. the rest of the world,"¹ and that patent reform is a "critical dimension[]" ² of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will "give American inventors and innovators the 21st century patent system they need to compete."³ Surprisingly, no legal scholar has assessed whether patent reform is capable of making …

Access Copyright & Technology: Legal And Policy Issues In Education, Lisa Di Valentino

FIMS Presentations

Access Copyright is a collective organization representing the
copyright interests of publishers and creators. The collective offers
copyright licences that allow certain limited uses of works in the
collective's repertoire. The use of collective licences as part of
copyright management policy was common in post-secondary education
administration until 2010, when many universities opted out of a
contractual relationship with Access Copyright.

The growing movement towards online open access publishing and
Creative Commons public licensing has made information more widely
available without requiring payment and with fewer restrictions on
use. The addition of education to the list of fair dealing purposes …

Technology And Intellectual Property: Out Of Sync Or Hope For The Future?, Bradford L. Smith

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Diamond V. Chakrabarty: Oil Eaters: Alive And Patentable, Dennis J. Walsh

Pepperdine Law Review

Congress is empowered, under article I, section 8 of the United States Constitution, to create patent laws that encourage the promotion of arts and sciences. In the congressional fulfillment of this task, the courts have been confused as to what products are worthy of patent protection under the patent statutes. One illustration of this confusion is the recent controversy of whether living organisms fit into the statutory patentable classification of section 101 of the 1952 Patent Act. The recent United States Supreme Court decision of Diamond v. Chakrabarty has ended this confusion by holding that living micro bacteria is patentable …

Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork

Michigan Telecommunications & Technology Law Review

Similarity is an elusive and complicated concept facing comparisons of biological molecules, as even minute changes to a molecule's structure can dramatically affect its function in the body. Yet the flood of biologic drugs on the market will increasingly force these similarity comparisons. These concerns are particularly relevant to two groups of drugs: families of biologic drugs that closely resemble each other in structure and function, here termed "similar-impact biologics," and the biosimilars, which are intended to closely approximate generic forms of biologic drugs. In bringing biologic drugs to the market, manufacturers are likely to face dual obstacles: FDA approval …

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

Fracking Patents: The Emergence Of Patents As Information-Containment Tools In Shale Drilling, Daniel R. Cahoy, Joel Gehman, Zhen Lei

Michigan Telecommunications & Technology Law Review

The advantages of new sources of energy must be weighed against environmental, health, and safety concerns related to new production technology. The rapid development of unconventional oil and gas fields, such as the Barnett and Marcellus Shales, provide an excellent context for these contrasting goals. Information about extraction hazards is an extremely important issue. In general, patents are viewed as a positive force in this regard, providing a vehicle for disseminating information in exchange for a limited property right over an invention. However, by limiting the evaluation of an invention by third parties, patents might also be used to control …

Is It Time For A Rule 11 For The Patent Bar?, Ralph D. Clifford

Faculty Publications

The failure to require the patent bar to be completely candid in its dealings with the U.S. Patent and Trademark Office (“PTO”) is one of the reasons behind the patent quality problem in the United States. Although PTO regulations impose a duty of candor on both the patent applicant and his or he attorney, this duty of disclosure is limited to matters already known by the parties. The regulations impose no duty to become educated about the technology that underlies a claimed invention. Indeed, there are rational reasons why a patent applicant might seek an uneducated attorney and order him …

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 …

Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai

Faculty Scholarship

The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the new post-issuance …

Patent Infringement As Criminal Conduct, Jacob S. Sherkow

Articles & Chapters

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …

Technological Cost As Law In Intellectual Property, Harry Surden

Publications

Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in substantive IP law.

More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory has …

Panel Iii: Politics And The Public In Ip & Info Law Policy Making, Michael J. Burstein, Derek Khanna, Jessica D. Litman, Sherwin Siy, Richard S. Whitt

Other Publications

We have been moving gradually from the theoretical to the practical. Having examined the impact of critical legal studies ("CLS") in the academy and having discussed the intersection between scholarship and activism, we now turn to the nitty-gritty questions of how to actually enact change in intellectual property and information law and policy.