Law Commons^™

How Can Open Source And Closed Source Software Business Structures Mutually Exist, Yugank Goyal, Padmanabha Ramanujam

Yugank Goyal

The phenomenon of producing Open Source Software based on unconstrained access to source code and the swift growth of the open source business structure of producing software fuelled by Linux Operating System and Apache Web Server have raised important questions, which are of immense scholastic interest. Accordingly many scholars in the last few years have endeavoured to clarify as to why thousands of top-quality programmers contribute freely to an open source product which is a public good. However, there has hardly been any attempt to explain how open source and closed source business structure of producing software can coexist. This …

Patents As Escalators, Amelia Smith Rinehart

Amelia Smith Rinehart

High technology companies commit time, effort and resources to innovation. Over the course of a research and development project, an innovative company may face several sequential decisions regarding whether to continue to invest in the project and whether to commercialize the discoveries that have been made. Companies often seek patents early in the research and development process to receive the right to exclude others from practicing the invention. Given a current trend toward earlier and earlier patent filing, it has been suggested that this strategy could leave many inventions underdeveloped as companies treat patents like real options, deciding later, as …

Rationales For And Against Regulatory Involvement In Resolving Internet Interconnection Disputes, Rob Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content telecommunications carriers typically a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited choice of ISP …

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Ryan G. Vacca

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Designer Collaborations As A Solution To The Fast-Fashion Copyright Dilemma, Arielle K. Cohen

Arielle K Cohen

This article explores the issue of large retailers capitalizing on designers’ designs by using the method of “close copying” and the dilemma that designers face due to their lack of recourse since their designs are not afforded copyright protection. The Council of Fashion Designers of America has been lobbying Congress for protection and their efforts have created the Innovative Design Protection and Piracy Prevention Act. This legislation is currently pending but it is a revised version of the earlier Design Piracy Prohibition Act and it removes many of the controversial provisions that were in the earlier version. Therefore, there is …

Contract + Tort = Property: The Trade Secret Illustration, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

Association Of Molecular Pathology Meets Therasense: Analyzing The Unenforceability Of Isolated-Sequence-Related Patents For Upenn, Columbia, Nyu, Yale, And Emory, Sam S. Han Ph.D.

Sam Han

37 CFR 1.56 requires disclosure of material information to the United States Patent and Trademark Office ("USPTO" or "PTO") when applying for a patent. This duty is imposed on (1) each inventor; (2) each attorney or agent who prepares or prosecutes the application; and (3) every other person who is substantively involved in the preparation or prosecution of the application and who is associated with the inventor, with the assignee or with anyone to whom there is an obligation to assign the application. Thus, for academic institutions, those who handle patent prosecution for the institution are bound by this duty …

Should Posts On Social Networking Websites Be Considered "Printed Publications" Under Patent Law?, Xiaojing Li

Xiaojing Li

The emergence of social networking websites imposes a challenge to patent law. Courts should not make a blanket assumption that everything posted on social websites constitute a printed publication. Rather, courts should adopt a refined multiple factor test to help the analysis. This proposal would result in a balance between private and public interests in an invention, and therefore help achieve the ultimate goal of patent law.

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Jeffrey M. Gaba

In 1709, Jacob Tonson, the most significant publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work. This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. …

The Creation And Destruction Of Price Cartels: An Evolutionary Theory, William Bradford

william bradford

This Article sketches the goals of antitrust law, describes the causes and effects of anticompetitive pricing generally and supracompetitive pricing specifically, explains the inability of antitrust law to suppress some instances of supracompetitive pricing, establishes the importance of trust between firms as a necessary condition for supracompetitive pricing, and illustrates how the strategic exchange of information is crucial to the creation and destruction of trust and thus to the evolution and devolution of price cartels. Part II develops a positive theory that explains and predicts the evolution and devolution of price cartels as a function of the ability of rival …

Better Mistakes In Patent Law, Andres Sawicki

Andres Sawicki

This Article analyzes patent mistakes—that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones. Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others. Consider, for example, the disclosure rules, which require that a patent reveal …

Another Parallel With Silicon Valley: Non-Compete Clauses Under Israeli Law, Edo B. Royker

Edo B Royker

The attached Article contributes to the literature on the benefits of not enforcing non-compete provisions in fostering a start-up friendly environment. Many scholars have previously focused on this issue, but the current literature has primarily focused on comparing the state of the law between California and Boston alone. My article serves the novel function of providing a third focal point for this analysis – Israel – and provides an in depth analysis of Israeli statutory and case law on this issue. Introducing a third focal point will add empirical evidence to the debate on whether the failure to enforce such …

Better Mistakes In Patent Law, Andres Sawicki

Andres Sawicki

This Article analyzes patent mistakes—that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article therefore evaluates the relative costs of patent mistakes, so that we can make better ones. The Article identifies three characteristics that drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others. Consider, for example, the disclosure rules, which …

Cyberlaw 2.0, Jacqueline Lipton

Jacqueline D Lipton

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Triggering Infection: Distribution And Derivative Works Under The Gnu General Public License, Theresa Gue

Theresa Gue

Imagine that Microsoft discovers that its profitable program, Microsoft Word, contains lines of code borrowed from an open-source software program. Further imagine that as a result of this oversight, all users of Microsoft Word now have a license to freely distribute, reproduce, and modify Word, and Microsoft is required to provide the source code to users in order to facilitate such actions. This is the exact scenario envisioned and feared by many corporations today. It is also the reason why the GNU General Public License (“GPL”), the most popular open-source license in the world, is also the most feared. The …

Comics, Courts & Controversy: A Case Study Of The Comic Book Legal Defense Fund, Marc H. Greenberg

Marc H. Greenberg

Abstract

Cartoons and comics have been a part of American culture since the formation of this nation. Throughout that lengthy history, comics and cartoons have also been a subject of controversy, censorship, legislation and litigation. They have been viewed as a threat to society, amid claims that they incite juvenile delinquency, and are scandalous, indecent and obscene.

This article is a case study of the work of the Comic Book Legal Defense Fund (CBLDF), a New York-based non-profit organization which provides legal defense for comic artists, collectors, distributors and retailers who find themselves facing civil and/or criminal penalties for the …

Pragmatic Patent Adjudication, Anna B. Laakmann

Anna B Laakmann

The Federal Circuit was created in large part to introduce stability and predictability into the patent law. By many accounts, it is failing to do so. Moreover, current patent doctrine does not adequately incorporate the patent system’s broader utilitarian purpose. Recent decisions on the patentability of diagnostic and therapeutic methods illustrate the fundamental flaws in the Federal Circuit’s jurisprudence. Doctrinal incoherence over medical methods is not simply an isolated glitch in the patent law. Rather, it serves as a case study of a larger problem with the court’s approach to questions of patent scope. By maintaining a façade of adjudicative …

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Can The “Formidable Shield” Last: A Re-Examination Of Copyright Law As A Means To Control Uncopyrighted Gray Market Goods, Ya Xia

Ya Xia

To fight against gray market goods, the trademark law leaves certain trademark owners uncovered, who then turn to copyright law for help. It is lawful in the U.S. for copyright owners to stop importation and distribution of uncopyrighted goods through attaching copyrighted accessories. Such practices have been rendered unlawful in Australia and denounced by the Supreme Court of Canada. The paper aims to discuss the illegitimacy under the U.S. law through both the statutory interpretation approach and the copyright misuse approach.

Unblocked Future: Why Gene Patents Won’T Hinder Whole-Genome Sequencing And Personalized Medicine, W. Nicholson Price Ii

W. Nicholson Price II

Whole-genome sequencing has been hailed as the crucial next step in personalized medicine. It has also been described as likely violating hundreds if not thousands of pre-existing patents on individual genes. These claims of patent infringement, however, are usually made without detailed analysis. Instead of stating that infringement definitely occurs, or in what circumstances, the discussion of whole-genome sequencing mentions that some claims may be typically infringed, but some may be invalid, and leaves the matter there. This paper seeks to provide a detailed analysis of the ways that whole-genome sequencing may infringe extant gene patents, focusing on the common …

The Evolving Role Of Opinions Of Patent Counsel In Federal Circuit Cases, Lynda J. Oswald

Lynda J Oswald

In recent years, an unexpected intersection has emerged in U.S. patent law in two types of cases addressing the roles of opinions of counsel: (1) those addressing willful infringement and enhanced damages; and (2) those addressing inducement of infringement. The U.S. Court of Appeals for the Federal Circuit appears to be weakening the role of patent opinions for willfulness determinations, but strengthening the role of such opinions in inducement cases. In light of these developments, companies doing business in the U.S., whether U.S.- or foreign-based, would do well as a strategic matter to err on the side of caution and …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

From Bad To Worst: Assessing The Long Term Consequences Of Four Controversial Fcc Decisions, Rob Frieden

Rob Frieden

Far too many major decisions of the Federal Communications Commission (“FCC”) rely on flawed assumptions about the current and future telecommunications marketplace. If the FCC incorrectly overstates the current state of competition, it risks exacerbating its mistake going forward if actual competition proves unsustainable, or lackluster. In many key decisions the FCC cited robust competition in current and future markets as the basis for decisions that relax restrictions on incumbents, abandon strategies for promoting competition, or apply statutory definitions of services that trigger limited government oversight. The Commission ignores the secondary and tertiary consequences of decisions that deprive it of …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Hey! You! Get Off Of My Cloud: Defining And Protecting The Metes And Bounds Of Privacy, Security, And Property In Cloud Computing, Timothy D. Martin

Timothy D Martin

Cloud computing is a growing force in today’s interconnected technological world. It allows people and organizations to purchase computing power and resources on an as-needed, pay-as-you-go basis. Users can employ it to satisfy modest needs, such as simple word-processing tasks, or to create large-scale enterprise applications delivered on the web. But cloud computing raises questions of functionality, security, confidentiality, ethics, enforcement, and data ownership. The lack of a clear body of law defining and regulating law enforcement’s access to electronic data and ability to prosecute related crimes creates other risks and erodes confidence in cloud computing. This paper begins with …

Ending Dilution Doublespeak: Reviving The Concept Of Economic Harm In The Dilution Action, Alexander Dworkowitz

Alexander Dworkowitz

No abstract provided.

The Patentability Of Financial Methods: The Market Participants’ Perspectives, Stefania Fusco

Stefania Fusco

In the last few years, there has been a renewed interest in the validity of patenting business methods. The issue appeared to be settled in 1998 with the State Street decision. However in 2008, the Federal Circuit, responding to a more restrictive approach toward the patent system adopted by the Supreme Court, began questioning the soundness of the policy to extend patent protection to business methods.

The Federal Circuit’s adaptation of its position occurred explicitly in In re Bilski when the court decided to rehear the case en banc and reconsider the conclusions previously reached in State Street. The Supreme …