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Full-Text Articles in Law
Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim
Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim
Michigan Telecommunications & Technology Law Review
This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it …
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Michigan Telecommunications & Technology Law Review
This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …
Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna
Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna
Michigan Law Review
Trademark owners regularly rely on claims that the defendant is "free riding" on their mark by making money using that mark, money the trademark owners say should belong to them. We analyze those free-riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well-known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff's mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to the …
How Many Patents Does It Take To Make A Drug - Follow-On Pharmaceutical Patents And University Licensing, Lisa Larrimore Ouellette
How Many Patents Does It Take To Make A Drug - Follow-On Pharmaceutical Patents And University Licensing, Lisa Larrimore Ouellette
Michigan Telecommunications & Technology Law Review
As described by Professors Dan Burk and Mark Lemley, drugs are[...] special because of the low number of patents per product: "In some industries, such as chemistry and pharmaceuticals, a single patent normally covers a single product. Much conventional wisdom in the patent system is built on the unstated assumption of such a one-to-one correspondence." Although many have repeated this one-patent, one-drug assumption, there has been little empirical analysis of how many patents actually protect each drug. In fact, most small-molecule drugs are protected by multiple patents. The average was nearly 3.5 patents per drug in 2005, with over five …
Patenting By Entrepreneurs: An Empirical Study, Ted Sichelman, Stuart J.H. Graham
Patenting By Entrepreneurs: An Empirical Study, Ted Sichelman, Stuart J.H. Graham
Michigan Telecommunications & Technology Law Review
[T]he Ewing Marion Kauffman Foundation--an organization that studies and promotes entrepreneurship in the United States--funded an effort at the University of California, Berkeley School of Law, to undertake the first comprehensive survey of the relationship between patenting and entrepreneurship in the United States. The authors, along with other investigators, administered the survey in 2008 to approximately 15,000 startup and early-stage companies in the biotechnology, medical device, information technology (IT) hardware, and software and Internet sectors. A portion of the survey examined why entrepreneurs, startups, and early-stage companies do (and do not) seek patents. This Article reports and analyzes results from …
Is Novelty Obsolete - Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch
Is Novelty Obsolete - Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch
Michigan Telecommunications & Technology Law Review
This paper presents a normative study of patent prosecution by examining the role that invention-date-based novelty rights play in U.S. patent law. Three sources inform the primary results: the prosecution history files of 21,000+ patent applications filed in the past decade; a survey of 1,000+ patent practitioners regarding their use of the novelty provisions of the Patent Act; and a collection of 11,000,000+ prior art references cited in recently-issued patents. Additional compilations of prosecution file histories for patents identified as either (1) valuable or (2) worthless supplement these data sets and allow for an evaluation of the differential importance of …
Noncompliance, Nonenforcement, Nonproblem? Rethinking The Anticommons In Biomedical Research, Rebecca S. Eisenberg
Noncompliance, Nonenforcement, Nonproblem? Rethinking The Anticommons In Biomedical Research, Rebecca S. Eisenberg
Articles
A decade ago the biomedical research community was sounding alarm bells about the impact of intellectual property (IP) rights on the ability of scientists to do their work. Controversies and delays in negotiating terms of access to patented mice and genes, databases of scientific information, and tangible research materials all pointed toward the same conclusion: that IP claims were undermining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many IP rights in "upstream" research results could paradoxically restrict "downstream" research and product development by making it too costly …
Account Of Some Psychological Experiments On The Subject Of Trade-Mark Infringement, Edward S. Rogers
Account Of Some Psychological Experiments On The Subject Of Trade-Mark Infringement, Edward S. Rogers
Michigan Law Review
iew in June, 1910, entitled, "The Unwary Purchaser, A Study in the Psychology of Trademark Infringement".