Law Commons^™

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Articles

Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Faculty Articles and Other Publications

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 …

Eli Lilly V. Teva: Generic Companies Infringe Under Akamai Iv In Case Of Divided Infringement, Christopher M. Holman

Faculty Works

The U.S. Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies decision (Akamai III), in conjunction with the Federal Circuit’s stance on divided infringement claims, effectively undermined the value of method claims, particularly in the realm of pharmaceuticals, diagnostics, and other biotechnology related innovation, by limiting the ability of patentees to establish liability in cases where steps of the claimed method are performed by multiple parties. On remand, the en banc Federal Circuit in Akamai Technologies v. Limelight Networks (Akamai IV) sought to address the problem by expanding the definition of direct infringement under 271(a) to encompass more scenarios …

Checks, Balance And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis

Akron Intellectual Property Journal

Recent Supreme Court activity regarding "intellectual property" may lead some to believe the increase in cases has some further meaning beyond the decisions themselves. The interests they represent and the source of power to enact legislation in the field raise distinct issues that may inform of current judicial interest and concern. These don't necessarily delineate the constitutional role of the Court relative to the delegation under Article I, Section Eight, Clause 8 of the United States Constitution. A gathering of cases using conventional search resources and techniques yielded 666 patent cases and 73 copyright cases. This essay is not intended …

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 …

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.

Protecting American Innovators By Combating The Decline Of Patents Granted To Small Entities, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The new patent laws and recent economic trends indicate that there is a difficult time ahead for small entities. American entrepreneurs and small businesses have created several of the major technological innovations in the past forty years. However, statistics indicate that patents granted to small entities have declined. In the wake of this trend, the U.S. Patent system has undergone significant changes. Currently, the United States Patent and Trademark Office (“USPTO”) is in the process of implementing the policies and procedures outlined in its five-year strategic plan. Further, the Leahy-Smith America Invents Act (“AIA”), the largest patent reform law since …

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Newman, J., Dissenting: Another Vision Of The Federal Circuit, Blake R. Hartz

IP Theory

No abstract provided.

Patent Reversion: An Employee-Inventor's Second Bite At The Apple, Richard Kamprath

Richard Kamprath

In an attempt to more fully compensate employee-inventors without harming the return on investment of employers, a patent reversion is proposed in which the rights to the patent revert to joint ownership between the original inventor and the current owner. In Section I, the background of the relationship between employer and employee-inventor will be discussed in terms of patent rights. This section will outline the problems inherent in the pre-assignment status quo of these rights from employees to employers. Section II will begin with Part A, which is a review of previously proposed solutions to the under-compensation of employee-inventors. The …

Interests In The Balance: Fda Regulations Under The Biologics Price Competition And Innovation Act, Parker Tresemer

Parker Tresemer

Recent biotechnology advances are yielding potentially life-saving therapies, but without FDA regulations designed to minimize product costs, patients will continue to be unable to afford these expensive biologic products. Many believe that these prohibitive costs stem from weak competition from generic biologic products, also known as follow-on biologics. To correct this deficiency, and to address the often conflicting regulatory and policy concerns associated with biologic products, Congress enacted the Biologics Price Competition and Innovation Act. The Act created an abbreviated approval pathway for biologic products and, if effective, could increase competition while driving down product costs. But legislation alone is …

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

Current And Potential Methods To Undermine A Competitor’S U.S. Patent Application, W. Keith Robinson, M. Haq

Faculty Journal Articles and Book Chapters

The current PTO procedures provide a few choices for a third party to influence the prosecution of a competitors patent application prior to issuance. In the case of protests and public use hearings, the third party may submit documents and explain their relevancy, but must know of the application’s existence prior to publication in order to meet the timeliness requirement. In the case of third-party submissions, the third party has a short two-month window post-publication, but cannot explain the relevancy of the documents submitted. In each case, the time frame within which a third party can act is extremely limited. …

Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho

Articles, Book Chapters, & Popular Press

South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.

Federal Employee Invention Rights - Time To Legislate, Marcus B. Finnegan, Richard W. Pogue

Michigan Law Review

It is the purpose of this article to review judicial standards applicable to the determination of rights in inventions made by employees of the federal government, to note statutory provisions affecting the problem, to examine the content and effect of the present Executive program for determining such rights, to review and evaluate two fundamental and conflicting theories in this field, and to propose legislation establishing appropriate standards and procedures. This topic is believed to have general interest because, in addition to the urgencies suggested above, the problem touches some of the basic legal philosophy underlying the United States patent system.