Law Commons^™

Brief For The Coalition Against Patent Abuse As Amicus Curiae In Support No Party, Charles Duan

Amicus Briefs

Perhaps unexpectedly, a case on the constitutionality of the Patent Trial and Appeal Board has major significance to the pressing policy crisis of drug prices in the United States. Erroneously issued patents monopolize medical therapies, making them unaffordable or inaccessible to numerous Americans. The inter partes review proceedings that the Board conducts have repeatedly and successfully overcome such patents, enabling competition and dramatically lowering prices. This Court should ensure the continued viability of the Board and of inter partes review, by preserving the Board’s objectivity and independence from executive branch political influence.

"Fair Use" Through Fundamental Rights In Europe: When Freedom Of Artistic Expression Allows Creative Appropriations And Opens Up Statutory Copyright Limitations, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, …

Who's Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crisis, Charles Duan, Christopher J. Morten

Articles in Law Reviews & Other Academic Journals

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict--indeed, have already begun to conflict--with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government paid compensation under 28 U. S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought …

The Domestic Effect Of South Africa's Treaty Obligations: The Right To Education And The Copyright Amendment Bill, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

On 16 June 2020, the President of South Africa returned the Copyright Amendment Bill [B-13 of 2017] to Parliament, expressing reservations regarding its constitutionality and compliance with international law. In this paper, I describe the constitutional implications of compliance with international law and the binding international obligations incumbent upon South Africa in respect of copyright and international human rights law. In doing so, I argue that the Bill of Rights acts as a magnet, compelling all organs of state to give greater normative weight to those international obligations that map onto the Bill of Rights as compared to those …

"An Hundred Stories In Ten Days": Covid-19 Lessons For Culture, Learning And Copyright Law, Carys J. Craig, Bob Tarantino

Joint PIJIP/TLS Research Paper Series

In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of …

Covert Deception, Strategic Fraud, And The Rule Of Prohibited Intervention (Originally Published As Part Of The Hoover Institution’S Aegis Series), Gary Corn

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul Gugliuzza

Working Papers

Imagine the following advertisement popping up on Craigslist: "FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of!"That probably seems bizarre. Still — and startlingly — it accurately portrays what’s happening right now in the Western District of Texas. One judge, appointed to the court less than …

Analysis Of Woods And Myburgh Comments On Cab, Jonathan Band

Joint PIJIP/TLS Research Paper Series

On June 16, 2020, President Ramaphosa of the South African Republic referred the Copyright Amendment Bill (“CAB”) back to the National Assembly on the grounds that he had reservations concerning its constitutionality. In his referral letter, President Ramaphosa stated that the CAB may be in conflict with international intellectual property (IP) treaties South Africa had joined or was planning to join. CAB opponents’ arguments that the CAB is incompatible with IP treaties are based largely on comments prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization, in 2018. Woods prepared these comments as …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, Congress has considered legislation to amend§ 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court's precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway with a subcommittee of the Senate holding numerous roundtables and hearings on the subject.

This article considers some less-discussed consequences of that draft legislative proposal. The legislation likely opens the door to patenting of subject …

Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan

Joint PIJIP/TLS Research Paper Series

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the …

What Role Can Regulations Play? A South African Public Law Perspective On The Potential Response Through Regulations To Constitutional Reservations About The Copyright Amendment Bill, B-13b Of 2017, Jonathan Klaaren

Joint PIJIP/TLS Research Paper Series

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

After a background section …

Kenya’S Intellectual Property Bill, 2020, And Its Shortcomings In Adopting All Lawful Trips Public Health Flexibilities, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

Given the importance of access to medicines to human rights and well-being in Kenya, it is appropriate to analyze whether Kenya has currently incorporated the allowed public health flexibilities to the greatest extent possible in its draft Intellectual Property Bill, 2020. This analysis will focus on the patent, utility model, and enforcement measures only as they are the ones directly relevant to access to medicines and other health technologies. The analysis starts with the premise that Kenya wishes to avoid granting unwarranted patents on unworthy inventions, especially with respect to medicines and other health technologies. In particular, the assumption is …

Of Monopolies And Monocultures: The Intersection Of Patents And National Security, Charles Duan

Articles in Law Reviews & Other Academic Journals

It was certainly an odd thing for the Department of Justice attorney arguing for the United States to appear before the Ninth Circuit to tell the appellate judges that a federal agency was wrong. This was what happened in a Federal Trade Commission enforcement action against Qualcomm Inc., a semiconductor technology company. As a substantial holder of patents on mobile communications technologies and also a leading manufacturer of chips used in that same industry, the FTC charged Qualcomm with anticompetitive conduct; the district court agreed and enjoined Qualcomm from certain patent licensing practices. It was that award of injunctive relief …

Guest Post Out Of The Blue The Federal Circuit Devises A New Rule For Color Mark, Christine Farley

Editorial Contributions

The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that “a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, therefore, can be inherently distinctive.”URL: https://patentlyo.com/patent/2020/04/federal-circuit-devises.html

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

End Notes, Sustainable Development Law & Policy

Sustainable Development Law & Policy

No abstract provided.

State Preemption And Single Use Plastics: Is National Intervention Necessary?, Ethan D. King

Sustainable Development Law & Policy

No abstract provided.

The Right To Legally Sourced Lumber? How The Effective Enforcement Of The Lacey Act Is A U.S. Human Rights Obligation And Critical To Preventing Abuse In The Illegal Logging Industry, Melanie Hess

Sustainable Development Law & Policy

No abstract provided.

An Ace Up Their Sleeve Or A House Of Cards: Can The Epa's Affordable Clean Energy Rule Withstand Chevron Deference?, Shannon Zaret

Sustainable Development Law & Policy

No abstract provided.

Lake Erie Bill Of Rights Gets The Ax: Is Legal Personhood For Nature Dead In The Water?, Devon Alexandra Berman

Sustainable Development Law & Policy

No abstract provided.

The Use Of The Regular Militaries For Natural Disaster Assistance: Climate Change And The Increasing Need For Changes To The Laws In The United States, China, Japan, The Philippines, And Other Countries, Donald D.A. Schaefer

Sustainable Development Law & Policy

No abstract provided.

Editor's Note, Brianna Delduca, Hannah Gardenswartz

Sustainable Development Law & Policy

No abstract provided.

End Notes, Sustainable Development Law & Policy

Sustainable Development Law & Policy

No abstract provided.

How Syria's Failure To Uphold The Kyoto Protocol And Paris Agreement Exacerbated The Effects Of Climate Change In The Levant, Nivea A. Ohri

Sustainable Development Law & Policy

No abstract provided.

Continuing A Broad Application Of Section 9 Of The Esa To Prevent Future Mass Extinctions, Alicia Martinez

Sustainable Development Law & Policy

No abstract provided.

Does Importing Endangered Species' Body Parts Help Conservation? Discretion To Import Trophies Under The Trump Administration, Brianna Marie

Sustainable Development Law & Policy

No abstract provided.

Ferc Ruling Undermines Energy Federalism And Arbitrarily Targets Mid-Atlantic Region Renewables, Philip Killeen

Sustainable Development Law & Policy

No abstract provided.

Jam V. Ifc: One Step Forward, Two Steps Back?, Nicholas Johnson

Sustainable Development Law & Policy

No abstract provided.

Can The Expansion Of 45q Effectively Spur Investment In Carbon Capture?, Shannon Zaret

Sustainable Development Law & Policy

No abstract provided.