Law Commons^™

Rethinking Innovation At Fda, Rachel Sachs, W. Nicholson Price Ii, Patricia J. Zettler

Scholarship@WashULaw

In several controversial drug approval decisions in recent years, the Food & Drug Administration (FDA) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the agency has come to make many innovation-related judgments as part of …

The Hidden Transactional Wisdom Of Media Discrimination In Pre-Awcpa Copyright, Kevin Emerson Collins

Scholarship@WashULaw

Media neutrality in copyright’s subject matter means that works of authorship are protected against copying, or not, regardless of the tangible medium in which they are fixed. For example, the same features of a sculptural work are protected regardless of whether they are fixed in a statue or a photograph of a statue. Media neutrality in subject matter is a fundamental and largely unquestioned copyright principle with a firm policy basis under copyright’s dominant incentive-to-create theory. Media discrimination in subject matter undermines in arbitrary ways authors’ ability to recoup their creativity costs over the sale of multiple copies.

This Article …

A Borrowed Language, Yvonne Osei

Graduate School of Art Theses

Art has the potency of mediation: bridging human differences, questioning voids in historical trajectories, negotiating spaces of relevance, and most importantly, being signifiers that embody the absent. I speak in a borrowed language, a multilingual visual tongue, inspired by a culmination of Western and African Art modes of practices to create charged platforms for multicultural communication.

My art presents visual portals that allow for intercultural and interracial mingling as issues of colorism, present-day colonialism, gender inequality and the politics of dress are foregrounded for collective deliberation. The essence of the work is often activated and brought to its full potential …

Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema

Scholarship@WashULaw

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable …

Optimal Patent Jurisprudence, Scott Baker, Claudio Mezzetti

Scholarship@WashULaw

We model judicial learning about optimal patent policy. The court is infinitely lived; the plaintiff and defendant are short lived. Litigated cases provide the court with information about the optimal rule. Different cases provide different sorts of information. Opinions influence the stream of future cases likely to be litigated and, as a result, change the flow of information to the court. In structuring opinions, courts make decisions whether to learn fast or slow. We have three main results. First, patent law will stabilize even if the court places zero value on the "predictability" of legal rules. Second, path dependence of …

Disclosure As A Strategy In The Patent Race, Scott Baker, Claudio Mezzetti

Scholarship@WashULaw

Research firms disclose a surprisingly large amount of information to the patent office through “targeted” disclosures, that is, disclosures intended to make the patent office aware of potentially patentable information. Conventional wisdom holds that these disclosures are made for defensive purposes; the disclosing firm does not itself plan to pursue patents related to the disclosed information, so the firm discloses to create prior art that might stop rivals from patenting. But firms have an incentive to disclose even if they intend to pursue patent protection. The reason is that, by making it more difficult to patent, disclosure extends the patent …

Symposium Introduction: Napster: Innocent Innovation Or Egregious Infringement, Gregory P. Magarian

Scholarship@WashULaw

Napster is gone for now, but the fissures it opened in our understanding of intellectual property will challenge lawyers for a long time. The basic idea behind Napster was a simple outgrowth of the Internet's premise of linking computers to facilitate the wide-spread exchange of information. The Napster Web site, with its peer-to-peer file sharing technology, created a sort of "clearing house" for information, specifically the sound files known as MP3s. Thousands upon thousands of users could sign on to the Napster site at any given time, offer MP3 files for downloading, and in turn download any files that any …

Patent Litigation In Europe—A Glimmer Of Hope? Present Status And Future Perspectives, Joseph Straus

Washington University Journal of Law & Policy

Little imagination is needed to realize the magnitude of the potential for European patents’ validity and infringement litigation in the fifteen Member States of the European Union.

Strategic Disclosure In The Patent System, Douglas Lichtman, Scott Baker, Kate Kraus

Scholarship@WashULaw

Patent applications are evaluated in light of the prior art. What this means is that patent examiners evaluate a claimed invention by comparing it with what in a rough sense corresponds to the set of ideas and inventions already known to the public. This is done for three reasons. First, the comparison helps to ensure that patents issue only in cases where an inventor has made a non-trivial contribution to the public's store of knowledge. Second, it protects a possible reliance interest on the part of the public since, once an invention is widely known, members of the public might …