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Articles 1 - 22 of 22
Full-Text Articles in Law
What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler
What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler
University of Miami Law Review
Recent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.
The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that …
Treating Diagnostics: Protecting In Vitro Diagnostic Testing In An Uncertain § 101 Landscape, Emily Iroz Rich
Treating Diagnostics: Protecting In Vitro Diagnostic Testing In An Uncertain § 101 Landscape, Emily Iroz Rich
Akron Law Review
Beyond question, medical diagnostic tests, they save lives. The diagnostic tests also contribute to the overall health of the U.S. economy. However, the current state of subject-matter eligibility for patent protection does not incentivize the research and development of these life-saving tools. Previous legislative and judicial efforts to fix subject-matter eligibility have failed. This article proposes a diagnostic patent act to allow the protection of in vitro diagnostic tests. The proposed diagnostic patent act would include safeguards to allow adequate access to fundamental research while incentivizing the return of investment to the patent holder. Safeguards would include exceptions to patent …
"Prep"Aring For A Challenge To Government-Owned Patents, Caleb Holland
"Prep"Aring For A Challenge To Government-Owned Patents, Caleb Holland
Catholic University Law Review
The United States Government owns one of the largest patent estates in the world, but it rarely brings suit for patent infringement. To understand why that may be, this paper looks critically at the Government as a patent holder. Specifically, the paper reviews the fundamentals of American patents and explores the intricacies unique to the Government as an entity that both grants and holds patent rights. The paper examines the historical progression of how the United States Government positions itself with regard to its patents, tracing this evolution from Constitutional origins to more recent statutory refinements. Finally, the paper looks …
Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim
Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim
Georgia State University Law Review
The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.
Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …
Code Ownership : Plagiarism And Use, Alexis Nicole Amore
Code Ownership : Plagiarism And Use, Alexis Nicole Amore
Theses, Dissertations and Culminating Projects
Technology is moving at unmeasurable rates to that of law. Ownership rights and legality become harder to grasp distant theories. With community code-sharing and limiting language structures, when does code become plagiarized or entity-owned? The disciplines of Cyberlaw and computer science are used to provide a better understanding.
The Cyberlaw discipline explores how jurisdiction views cyberspace, source code, and source code’s placement within legislation. Due to cyberspace’s ever-evolving nature, litigation struggles to encompass the possibilities within it. Computer science delves into theory-based excursions that define the law’s shape in the cyber realm. It bolsters the possibility of implementing progressive legislation …
Intellectual Property For New Entrepreneurs, Michael Johnston
Intellectual Property For New Entrepreneurs, Michael Johnston
Honors Projects
Abstract – New entrepreneurs, regardless of age, encounter several barriers regarding intellectual property. My research posits that new entrepreneurs are burdened by both informational barriers and lack of resources. A data driven analysis of this problem produced an easy to comprehend guide targeted to new entrepreneurs. This paper presents a subjective guide for entrepreneurs that details patents, trademarks, copyrights, and licensing.
The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff
The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff
Notre Dame Law Review
This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in …
Patents And Price Fixing By Serial Colluders, Michael J. Meurer, William Kovacic, Robert Marshall
Patents And Price Fixing By Serial Colluders, Michael J. Meurer, William Kovacic, Robert Marshall
Faculty Scholarship
Antitrust law has long been mindful of the danger that firms may misuse their patents to facilitate price fixing. Courts and commentators addressing this danger have assumed that patent-facilitated price fixing occurs in a single market. In this Article, we extend conventional analysis to address firms’ patent misuse to facilitate price fixing across multiple products lines. By doing so, we expose gaps in existing agency enforcement and scholarly proposals for reform. Important legal tests that make sense in the single market setting do not carry over to the context we call serial collusion, where certain offenders engage in repeat collusion …
A Framework For Evaluating Willingness Of Frand Licensees, Jorge L. Contreras
A Framework For Evaluating Willingness Of Frand Licensees, Jorge L. Contreras
Utah Law Faculty Scholarship
An increasing number of cases around the world turn on whether a manufacturer of a product – e.g., a smartphone, a tablet or a car -- (an “implementer”) is willing to pay a “fair, reasonable and nondiscriminatory” (FRAND) royalty for patents that are essential to an industry standard embodied in that product (standards-essential patents or SEPs). This determination is important both to the analysis of the appropriateness of an injunction under the 4-factor eBay test in the U.S., and for assessing the appropriateness of injunctive relief under the Huawei v. ZTE competition law case in the EU. This essay explores …
Injunctions In Patent Law: A Trans-Atlantic Dialog On Flexibility And Tailoring, Jorge L. Contreras, Martin Husovec,
Injunctions In Patent Law: A Trans-Atlantic Dialog On Flexibility And Tailoring, Jorge L. Contreras, Martin Husovec,
Utah Law Faculty Scholarship
This chapter is from the edited volume "Injunctions in Patent Law: A Trans-Atlantic Dialogue on Flexibility and Tailoring" (Jorge Contreras & Martin Husovec, eds., Cambridge Univ. Press, forthcoming). It offers a unique analytical synthesis of eleven national and two regional/international descriptions of flexibilities in patent remedies authored by leading scholars in the field. This synthesis identifies a range of similarities and differences among jurisdictions, explains the principal features of these different legal systems, provides an analytical framework for comparing them, and offers observations about trends and the outlook for the future. The countries studied include Canada, Finland, France, Germany, Israel, …
Legal Principles Of Acts Resulting From Patent Rights A Comparative Study Of Uae, Jordanian And French Legal Systems, Nouri Hamad Khater
Legal Principles Of Acts Resulting From Patent Rights A Comparative Study Of Uae, Jordanian And French Legal Systems, Nouri Hamad Khater
UAEU Law Journal
Patent rights occupy an eminent position within the intellectual copyrights in general, and the industrial copyrights, in particular. Admitting patent rights resulted in several significant impacts at the legal and economic levels alike. Thus, patent legislations have closely focused on that issue. Among the most important impacts of such an issue are the articles governing the acts based on patent rights. Legislations have identified the basic legal principles governing these acts. Therefore, we find it highly essential to discuss these legislations, explain their principles and compare such basic principles to the general principles of legal acts. This study is based …
Software Patent In U.S. Law, Mohammed Hassan Abdullah
Software Patent In U.S. Law, Mohammed Hassan Abdullah
UAEU Law Journal
The handling of the patent system is at variance in the American system with that in the European Union's system, where the American system began to allow software protection under its patent system in addition to copyright protection while the European Union's Patent Office accepts this tendency some member States reject it. This affects negatively the level of protection and its nature, which should be available in a suitable and balanced manner between the different legal systems due to the nature of software as a countries' trans-border product. Thus, this research study calls for a special system of protection since …
United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller
United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller
Catholic University Law Review
Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …
The Problem Of Recourse To Arbitration In Intellectual Property Disputes Within National Laws: Comparative Study On Patent, Trademark And Copyright Disputes, Mahmoud Ismail Abu Turabi
The Problem Of Recourse To Arbitration In Intellectual Property Disputes Within National Laws: Comparative Study On Patent, Trademark And Copyright Disputes, Mahmoud Ismail Abu Turabi
UAEU Law Journal
This study tries to answer the following question: could the intellectual property rights being a subject of arbitration in case of dispute? To answer the question, we need to study the legal nature of the intellectual property and the legal basic to get protection. It is a comparative study between Jordanian law and French law.
Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick
Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick
St. John's Law Review
(Excerpt)
This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …
The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao
The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao
Touro Law Review
No abstract provided.
Originality's Other Path, Joseph Fishman
Originality's Other Path, Joseph Fishman
Vanderbilt Law School Faculty Publications
Drawing on original archival research, this Article challenges the standard account of what originality doctrine is and what courts can do with it. It identifies Nelson's forgotten copyright legacy: a still-growing line of cases that treats music differently, sometimes even more analogously to patentable inventions than to other authorial works. These decisions seem to function as a hidden enclave within originality's larger domain, playing by rules that others couldn't get away with. They form originality's other path, much less trod than the familiar one but with a doctrinal story of its own to tell. Originality and nonobviousness's parallel beginnings reveal …
Defensive Patent Litigation Strategy For Chinese Companies: A Review Of The Extraterritorial Reach Of The United States Patent Laws, Lisa D. Zang
Fordham Intellectual Property, Media and Entertainment Law Journal
China has experienced an extraordinary transformation from a poor, developing nation into a global economic power. With China becoming one of the U.S.’s largest trading partners, however, Chinese companies have become increasingly enmeshed in U.S. patent litigations. Although the U.S. patent laws are intended only to govern conduct within the nation’s borders, the line between domestic and foreign economic activities has become increasingly blurred. Modern sales transactions often span multiple countries, and in such situations, it may not be clear whether the U.S. patent laws apply. For Chinese companies facing exposure to U.S. patent litigations, it is critical to understand …
Intellectual Property As A Determinant Of Health, Ana Santos Rutschman
Intellectual Property As A Determinant Of Health, Ana Santos Rutschman
All Faculty Scholarship
Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …
Improving Access To Emerging Lifesaving Drugs: Solving The Disclosure Problem Within The Patent Dance, Michael J. Schellhous
Improving Access To Emerging Lifesaving Drugs: Solving The Disclosure Problem Within The Patent Dance, Michael J. Schellhous
Saint Louis University Journal of Health Law & Policy
Biologics are a growing class of pharmaceutical drugs and are associated with a significant portion of major medical breakthroughs over the past fifty years. However, in comparison with traditional small-molecule drugs, biologics are vastly more complex, more difficult to manufacture, and extremely expensive. Congress passed the Biologics Price Competition and Innovation Act (BPCIA) in an effort to increase the availability of biosimilars—the generic versions of biologic drugs—but the BPCIA has been largely ineffective. This is due, in part, to the lack of a standard regarding initial information disclosures required at the outset of the BPCIA process, leading to a cumbersome …
We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey
We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey
Faculty Scholarship
Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …
Nonobviousness: Before And After, Dmitry Karshtedt
Nonobviousness: Before And After, Dmitry Karshtedt
GW Law Faculty Publications & Other Works
The requirement of nonobviousness, codified in 35 U.S.C. § 103, has been called “the ultimate condition of patentability” because of its crucial function of keeping technically trivial inventions out of the patent system. The obviousness determination must be made based on the state of the invention’s field at a particular point in time—in the Patent Act’s current version, the date that the patent application was effectively filed with the U.S. Patent and Trademark Office (“PTO”).
However, in spite of the critical role of time in patent law and the danger that hindsight bias could distort § 103 analysis when patentability …