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Full-Text Articles in Law
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Sarah R. Wasserman Rajec
Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …
Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec
Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec
Sarah R. Wasserman Rajec
No abstract provided.
An Overview Of Patent Prosecution, Frederick W. Dingledy
An Overview Of Patent Prosecution, Frederick W. Dingledy
Frederick W. Dingledy
No abstract provided.
Rethinking Patent Law In The Administrative State, Orin S. Kerr
Rethinking Patent Law In The Administrative State, Orin S. Kerr
Orin Kerr
This Article challenges the Supreme Court's recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics ofpatent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system.
U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers
U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers
Amy L. Landers
The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers
The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers
Amy L. Landers
Owning The New Economy: A Guide To Intellectual Property Management For Australia's Clean Technology Sector, Kane Wishart
Owning The New Economy: A Guide To Intellectual Property Management For Australia's Clean Technology Sector, Kane Wishart
Matthew Rimmer
Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level …
Foreword, David Olson
Private Value Determinations And The Potential Effect On The Future Of Research And Development, Amy L. Landers
Private Value Determinations And The Potential Effect On The Future Of Research And Development, Amy L. Landers
Amy L. Landers
Although the promise of an emerging patent market is thought to provide future benefits to invention, innovation, and the public, this essay examines the possibility that the aggregate influence of this activity could instead destabilize patent values in a manner that mirrors the "bubble" phenomenon that occurred in certain markets in the past. To the extent that this occurs, this would destabilize the patent system and might have negative consequences for the future of investment in research, development and innovation.
Intellectual Property And Biofuels: The Energy Crisis, Food Security, And Climate Change, Matthew Rimmer, Griffith Hack
Intellectual Property And Biofuels: The Energy Crisis, Food Security, And Climate Change, Matthew Rimmer, Griffith Hack
Matthew Rimmer
In light of larger public policy debates over intellectual property and climate change, this article considers patent practice, law, and policy in respect of biofuels. This debate has significant implications for public policy discussions in respect of energy independence, food security, and climate change. The first section of the paper provides a network analysis of patents in respect of biofuels across the three generations. It provides empirical research in respect of patent subject matter, ownership, and strategy in respect of biofuels. The second section provides a case study of significant patent litigation over biofuels. There is an examination of the …
Our Divided Patent System (With J. Allison & M. Lemley) (Forthcoming), David Schwartz
Our Divided Patent System (With J. Allison & M. Lemley) (Forthcoming), David Schwartz
David L. Schwartz
No abstract provided.
A Generation Of Patent Litigation, Michael Risch
A Generation Of Patent Litigation, Michael Risch
Michael Risch
This study compares twenty-five years of litigation and patents of the ten most litigious NPEs (as of 2009) with a random group of cases and patents in the same yearly proportions. All cases involving every patent was gathered, allowing the life cycle of each asserted patent to be studied. The data includes litigation data, patent data, reexaminations, and other relevant data. This paper considers outcomes and patent quality. A future paper will examine innovation and markets. Unsurprisingly, the data shows that the studied NPE patents were found invalid and noninfringed about twice as often as the comparable nonNPEs. But there …
Patentable Subject Matter As A Policy Lever, Amy L. Landers
Patentable Subject Matter As A Policy Lever, Amy L. Landers
Amy L. Landers
Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term “invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are …
The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers
The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers
Amy L. Landers
The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.
Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in …
Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson
Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson
J. Jonas Anderson
Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson
Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson
J. Jonas Anderson
From Kafka To Kafta: Intellectual Property, And The Korea-Australia Free Trade Agreement, Matthew Rimmer
From Kafka To Kafta: Intellectual Property, And The Korea-Australia Free Trade Agreement, Matthew Rimmer
Matthew Rimmer
The Korea-Australia Free Trade Agreement 2014 (KAFTA) is a Kafkaesque agreement – with its secret texts, speculative claims, and shadowy tribunals. Australia and South Korea have signed a new free trade agreement - the Korea-Australia Free Trade Agreement2014 (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement. There has been much debate in the Australian Parliament over the transparency of the trade agreement; the scope of market access …
Trolls Or Great Inventors: Case Studies Of Patent Assertion Entities, Ryan Holte
Trolls Or Great Inventors: Case Studies Of Patent Assertion Entities, Ryan Holte
Prof. Ryan T. Holte
There has been much debate about the economic harms caused by patent infringement lawsuits filed by patent holders who do not make or sell products covered by their own patents—entities pejoratively referred to as “patent trolls.” This debate has thus far been largely theoretical or based on broad industry-wide data. The purpose of this article is to present a focused empirical report that has previously been lacking—detailed information regarding the inventors themselves, the patent assertion entities (PAEs) that represent them, and the stories behind their patents. The research for this article centers on two instructive case studies: (1) MercExchange, L.L.C., …
Global Issues In Intellectual Property Law, Amy Landers, Michael Mireles, John Cross, Peter Yu
Global Issues In Intellectual Property Law, Amy Landers, Michael Mireles, John Cross, Peter Yu
Amy L. Landers
This book is designed to facilitate the introduction of international, transnational, and comparative law issues into a domestic Intellectual Property course. The book is very accessible for law students and their professors. The book can be assigned or recommended as optional reading to supplement a domestic-only course to advance the students' understanding of their own system.
The Trespass Fallacy In The "Software Patent" Debate, Ryan Holte
The Trespass Fallacy In The "Software Patent" Debate, Ryan Holte
Prof. Ryan T. Holte
In The Trespass Fallacy in Patent Law, Professor Adam Mossoff details how patent law jurisprudence and scholarship is dominated by an indeterminacy critique or “trespass fallacy” in two respects. Professor Mossoff’s essay, however, only briefly mentions the now paramount contemporary issue surrounding the more-focused “software patent” debate. In this short essay, I briefly discuss Professor Mossoff’s trespass fallacy analysis as it relates to “software patents” and the Supreme Court’s October 2013 Term case Alice Corp. Pty. Ltd. v. CLS Bank Int’l.
The "Progress Clause": An Empirical Analysis Based On The Constitutional Foundation Of Patent Law, Lori Andrews
The "Progress Clause": An Empirical Analysis Based On The Constitutional Foundation Of Patent Law, Lori Andrews
Lori B. Andrews
Functionality And Graphical User Interface Design Patents, Michael Risch
Functionality And Graphical User Interface Design Patents, Michael Risch
Michael Risch
Modern designers of graphical user interfaces, or GUIs, have obtained design patent protection for creative computer software displays, a realm previously limited to copyright. The difference in protection is important because design patents do not traditionally allow the same defenses - life fair use - associated with copyright. Apple's nearly billion dollar judgment against Samsung, which included such a GUI patent, brought this issue to the forefront.
This article answers three emerging questions:
1. Aren't GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, …
The Anti-Economy Of Fashion: An Openwork Approach To Intellectual Property Protection, Amy L. Landers
The Anti-Economy Of Fashion: An Openwork Approach To Intellectual Property Protection, Amy L. Landers
Amy L Landers
Fashion’s cultural connections provide the groundwork for a theory to resolve the critical questions of protection for works that draw strongly on exogenous inputs. This article proposes that narrow protection for fashion is both economically justified, theoretically sound, and beneficial to the field because it facilitates spillovers in a manner that allows others to create the endless variations that are the lifeblood of this vibrant industry. Such protection relies on a theory of openworks, which applies to designs that have a high level of input from outside of the creator’s realm of activity. In fashion, inspiration that derives from the …
Trick Or Treaty? The Australian Debate Over The Anti-Counterfeiting Trade Agreement (Acta), Matthew Rimmer
Trick Or Treaty? The Australian Debate Over The Anti-Counterfeiting Trade Agreement (Acta), Matthew Rimmer
Matthew Rimmer
The secretive 2011Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization's TRIPS Agreement …
Framing The Patent Troll Debate, Michael Risch
Framing The Patent Troll Debate, Michael Risch
Michael Risch
The patent troll debate has reached a fevered pitch in the USA. This peer reviewed editorial seeks to frame the debate by pointing out the lack of clarity in defining patent trolls and their allegedly harmful actions. It then frames the debate by asking currently unanswered questions: Where do troll patents come from? What are the effects of troll assertions? Will policy changes improve the system?
Understanding The Realities Of Modern Patent Litigation, In Symposium, Steps Toward Evidence-Based Ip (With J. Allison & M. Lemley), David Schwartz
Understanding The Realities Of Modern Patent Litigation, In Symposium, Steps Toward Evidence-Based Ip (With J. Allison & M. Lemley), David Schwartz
David L. Schwartz
No abstract provided.
Unpacking Patent Assertion Entities (With J. Kesan & C. Cotropia) (Forthcoming), David Schwartz
Unpacking Patent Assertion Entities (With J. Kesan & C. Cotropia) (Forthcoming), David Schwartz
David L. Schwartz
No abstract provided.
On Mass Patent Aggregators: A Response To Mark A. Lemley & A. Douglas Melamed’S Missing The Forest For The Trolls, David Schwartz
On Mass Patent Aggregators: A Response To Mark A. Lemley & A. Douglas Melamed’S Missing The Forest For The Trolls, David Schwartz
David L. Schwartz
No abstract provided.
Licensing Acquired Patents, Michael Risch
Licensing Acquired Patents, Michael Risch
Michael Risch
Patents have always been licensed. Patents have always been acquired. Patents have even been acquired for the purpose of licensing new entrants. In short, there have always been secondary markets. But licensing acquired patents is a fairly recent business model. To be sure, there have been some historical exceptions but, for the most part, historical licensing and secondary markets primarily involved inventors (and their companies) and producers of products and services. While some of the same costs and benefits might apply to licensing of non-acquired patents by individuals or producing companies, examining the acquisition model improves analytical rigor. This essay, …
The Empire Of Cancer: Gene Patents And Cancer Voices, Matthew Rimmer
The Empire Of Cancer: Gene Patents And Cancer Voices, Matthew Rimmer
Matthew Rimmer
In his book, The Emperor of All Maladies, Siddhartha Mukherjee writes a history of cancer — ‘It is a chronicle of an ancient disease — once a clandestine, “whispered-about” illness — that has metamorphosed into a lethal shape-shifting entity imbued with such penetrating metaphorical, medical, scientific, and political potency that cancer is often described as the defining plague of our generation’.Increasingly, an important theme in the history of cancer is the role of law, particularly in the field of intellectual property law. It is striking that a number of contemporary policy debates over intellectual property and public health have concerned …