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Full-Text Articles in Law
Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong
Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong
Michigan Telecommunications & Technology Law Review
The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …
Private Copyright Reform, Kristelia A. García
Private Copyright Reform, Kristelia A. García
Michigan Telecommunications & Technology Law Review
The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed “private copyright reform,” presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can …
Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork
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 …
Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu
Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu
Michigan Telecommunications & Technology Law Review
When the America Invents Act ("AIA ") was signed in September 2011, many feared the law might benefit larger corporations at the expense of small businesses. This Note examines how one portion of the AIA, governing joinder in patent cases, might actually benefit small businesses by reducing patent assertions from non-practicing entities ("NPEs"). NPE assertions disproportionately affect small businesses, both because NPEs target small businesses more frequently and because patent assertions have a greater impact on individual companies. Prior to the AIA, joining multiple defendants in a single lawsuit offered important advantages for patent holders and allowed NPEs to achieve …
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
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 …
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Michigan Telecommunications & Technology Law Review
2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Michigan Telecommunications & Technology Law Review
Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …
Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury
Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury
Michigan Telecommunications & Technology Law Review
Arising most commonly as a defense to an infringement claim, enablement requires a patent to describe the claimed invention in sufficient detail to permit a person having ordinary skill in the relevant field to replicate and use the invention without needing to engage in "undue experimentation." If a patent claim is not "enabled"--i.e., if a person having ordinary skill in the art (PHOSITA) who studied the patent cannot make or use the invention without undue experimentation--the claim is invalid and can no longer be asserted. This penalty deters patent applicants from claiming more than they invented and allows others to …
The Super Brawl: The History And Future Of The Sound Recording Performance Right, Brian Day
The Super Brawl: The History And Future Of The Sound Recording Performance Right, Brian Day
Michigan Telecommunications & Technology Law Review
On February 4, 2009, Senator Patrick Leahy introduced the Performance Rights Act ("PRA") to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution--and more than ten years after gaining a limited digital performance right--legislation is pending that would once again expand the scope of sound recording copyright to encompass terrestrial radio broadcasts. Historically, such broadcasts have been exempt from sound recording performance royalties.[...] Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this Note suggests that sound recording …
Making Much Ado About Theory: The Chinese Trademark Law, Leah Chan Grinvald
Making Much Ado About Theory: The Chinese Trademark Law, Leah Chan Grinvald
Michigan Telecommunications & Technology Law Review
Although the United States has had an active hand in the implementation of trademark law in China over the past century, the same frustrations that marked the turn of the twentieth century are reflected in the twenty-first century. This Article posits that one of the reasons that the United States has not seen the desired level of progress in China's protection of trademarks lies in the imposition of an American theory of trademarks, which has inhibited U.S. reform efforts in China to date. This imposition is understandable, as little thought has been given to the Chinese theoretical justification for their …
Patents And Diversity In Innovation, Brian Kahin
Patents And Diversity In Innovation, Brian Kahin
Michigan Telecommunications & Technology Law Review
Over the past quarter-century, the patent system has expanded in scope and significance, claiming a central position in a U.S. economy increasingly based on knowledge and intangible assets. This historic expansion has come at the cost of controversy and, within the past five years, growing public scrutiny from outside the system--from the press, business, Congress, and finally the Supreme Court. However, proposed reforms are marked by deepening divisions between sectors of the economy. The information technology (IT) and services industries favor strong reforms while pharmaceutical and biotech industries, as well as the patent bar, favor modest, incremental reforms. This yawning …
Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement, Graeme B. Dinwoodie, Rochelle C. Dreyfuss
Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement, Graeme B. Dinwoodie, Rochelle C. Dreyfuss
Michigan Telecommunications & Technology Law Review
Since the Patent Act was revised in 1952, patent law has expanded to cover an array of novel endeavors--new fields of technology (notably computer science and business methods) as well as the activities of researchers engaged in fundamental scientific discovery. These changes have been accompanied by shifts in the organizational structure of the technological community, with smaller firms and universities emerging as important players in the patent system, and by new marketplace expectations arising from consumer demand for interoperable technology and converging functionality. As a result of these developments, structural flaws in the legal order have become evident. Although the …
Intellectual Property Rights In Advertising, Lisa P. Ramsey
Intellectual Property Rights In Advertising, Lisa P. Ramsey
Michigan Telecommunications & Technology Law Review
Before the twentieth century, U.S. courts refused to protect copyright in advertisements. Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans. This Article questions whether this extension of copyright protection to advertising and trademark protection to slogans has a satisfactory utilitarian justification[...] If it is too difficult to completely eliminate copyright protection of advertising, Congress should at least consider reducing such protection to increase the free flow of advertising …
Musical Musings: The Case For Rethinking Music Copyright Protection, J. Michael Keyes
Musical Musings: The Case For Rethinking Music Copyright Protection, J. Michael Keyes
Michigan Telecommunications & Technology Law Review
This Article focuses on the topic of music copyright, but addresses this legal issue from a different vantage point than that of the industry insiders, insightful scholars, and policy makers that have weighed in on the debate. Instead of focusing on the issues regarding wholesale digital reproduction and dissemination of music protected by copyright, this Article focuses on music copyright infringement when the claim is that a given piece of music is "substantially similar" to another piece of music protected by copyright. Part I of this Article touches on the history of the music industry and copyright in this country, …
Best Mode: A Plea To Repair Or Sacrifice This Broken Requirement Of United States Patent Law, Steven B. Walmsley
Best Mode: A Plea To Repair Or Sacrifice This Broken Requirement Of United States Patent Law, Steven B. Walmsley
Michigan Telecommunications & Technology Law Review
An inventor's obligation to disclose the best mode of her invention is strong consideration in the U.S. patent bargain, but the courts paradoxically define the scope of that obligation, thus rendering the enforcement of U.S. patents unreasonably unpredictable. If an inventor cannot reasonably foresee the scope of her obligation to disclose invention details, then she is subjected to the costs and risks of either overcompliance or undercompliance with the best mode requirement. The scope of the best mode requirement should either be reliably defined by an en banc ruling of the Court of Appeals for the Federal Circuit, or the …
International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka
International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka
Michigan Telecommunications & Technology Law Review
The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection--or variations in that protection--hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …
Economic Espionage Act--Reverse Engineering And The Intellectual Property Public Policy, The, Craig L. Uhrich
Economic Espionage Act--Reverse Engineering And The Intellectual Property Public Policy, The, Craig L. Uhrich
Michigan Telecommunications & Technology Law Review
The publicity surrounding[...] incidents of industrial espionage resulted in a push for federal protections. In response to this pressure from U.S. industries, Congress passed the Economic Espionage Act of 1996 ("EEA"). The EEA protects trade secrets through the use of federal criminal sanctions." The EEA's provisions are introduced in Part I. Trade secrets are a form of intellectual property. Therefore, a basic understanding of intellectual property law is important to an analysis of the EEA. Part II of this Article provides an overview of the various forms of intellectual property. To be effective, the EEA must complement existing intellectual property …
Taking A Bite Out Of Circumvention: Analyzing 17 U.S.C. 1201 As A Criminal Law, Jason M. Schulz
Taking A Bite Out Of Circumvention: Analyzing 17 U.S.C. 1201 As A Criminal Law, Jason M. Schulz
Michigan Telecommunications & Technology Law Review
...information content providers who depend heavily on copyright law are growing increasingly wary of advances in digital technology that allow manipulation of their content and potentially diminish the effectiveness of their copyright protection. Technology firms, on the other hand, are looking more and more at developing products which provide low-cost, high quality access to content without restriction. Thus, as technologists work feverishly to find new ways to free up information, content providers are fighting just as hard to constrain access in order to prevent market-killing duplication and distribution of their works. These two codependent yet clashing interest groups recently met …