Law Commons^™

Ids Practice After Therasense And The Aia: Decoupling The Link Between Information Disclosure And Inequitable Conduct, Arpita Bhattacharyya, Michael R. Mcgurk

Arpita Bhattacharyya

An essential element of filing and prosecuting a patent application in the United States is the duty to disclose material information to the United States Patent and Trademark Office (“Patent Office”) under 37 C.F.R. § 1.56 (Rule 56). The failure to disclose information can result in a later ruling of inequitable conduct and unenforceability of the patent. The Federal Circuit’s en banc decision in Therasense heightened the “materiality” and “intent” standards for finding inequitable conduct, but there has been much uncertainty in the patent community regarding the future of the duty of disclosure under Rule 56. The majority in Therasense …

Copyright Fee Shifting: A Proposal To Promote Fair Use And Fair Licensing, Ben Depoorter

Ben Depoorter

The fair use doctrine seeks to facilitate socially optimal uses of copyrighted material. As a practical matter, however, cumulative creators, such as documentary filmmakers and many contemporary musicians, are often reluctant to rely on the fair use doctrine because of its inherent uncertainty, the potentially harsh remedies for copyright infringement, and the practical inability to obtain effective pre-clearance rights. Moreover, copyright owners have no obligation under existing law to respond to a cumulative creator’s inquiry. Thus, a familiar refrain in professional creative communities is “if in doubt, leave it out.” In this Article we propose a novel mechanism that would …

Compulsory Licensing In The European Union, Jarrod Tudor

Jarrod Tudor

Despite attempts to harmonize intellectual property law across the 27-member European Union, this area of law remains a mix of national law and federal law. In regard to the possibility of compulsory licensing, challenges remain in the attempt to make law uniform. The Court of Justice of the European Union has struggled to balance national and federal interests on the issue of compulsory licensing of patents, trademarks, and copyrights largely by applying Articles 28, 30, 81, and 82 of the Treaty on European Union. Specifically, these Articles of the Treaty that support the notion of the free movement of goods …

Intellectual Property, The Free Movement Of Goods And Trade Restraint In The European Union, Jarrod Tudor

Jarrod Tudor

The European Union is the most significant trade partner of the United States. Trading in goods protected by intellectual property rights remains a challenge for American business entities as they are forced to sift through a myriad of law consisting of the federal intellectual property law of the European Union and the intellectual property law of the member-states. The Court of Justice of the European Union has been faced with dozens of complex cases arising out of conflicts between the national law of the member-states and the Articles of the Treaty on European Union that mandate the free movement of …

Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda B. Cook

Amanda B Cook

The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to remember that in the common law …

Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar- Perel

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation. Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar-Perel

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation.

Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

Crowdsourcing Indie Movies

Henry H. Perritt, Jr.

Abstract

Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

Intellectual Property And Employee Selection, Elizabeth A. Rowe

Elizabeth A Rowe

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David Franklyn, David Hyman

David J. Franklyn

Disgruntled trademark owners have filed more than one hundred lawsuits in the United States and Europe, claiming that their trademarks should not be sold by search engines for use as keywords. Despite the volume of litigation, there has been little independent empirical work on consumer goals and expectations when they use trademarks as search terms; on whether consumers are actually confused by search results; and on which entities are buying trademarks as keywords. Instead, judges have relied heavily on their own intuitions, based on little more than armchair empiricism, to resolve such matters.

We report on the results of a …

Copyright Lawmaking And The Public Choice: From Legislative Battles To Private Ordering, Yafit Lev-Aretz

Yafit Lev-Aretz

On January 18th, 2012, the Web went dark in the largest online protest in history. Two anti-piracy Bills – The Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA) – attracted waves of opposition from the Internet community, which culminated on January 18th into an unprecedented 24-hour Web strike, followed by a decision to shelve the Bills indefinitely. This Article argues that the SOPA/PIPA protest created a new political reality in copyright lawmaking, with the tech industry becoming a very influential actor on the one hand, and social networks lowering mobilization costs of individual users on the other …

Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David J. Franklyn, David Hyman

David J. Franklyn

Disgruntled trademark owners have filed hundreds of lawsuits in the United States and Europe claiming that search engines should not be permitted to sell their trademarks to competitors for use as keywords. Despite the volume of litigation, there has been almost no independent empirical work on the goals and expectations of consumers when they use trademarks as keyword search terms. There has also been little or no work on whether consumers are actually confused by competitor-purchased ads. And there has been no reported investigation identifying the types of entities that purchase trademarks as keywords. In this paper, we report on …

Reviving The Gatekeeping Function, Maayan Filmar-Perel

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation.

Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

Crowdsourcing A Trademark: What The Public Giveth, The Courts May Taketh Away, Llewellyn Joseph Gibbons

Llewellyn Joseph Gibbons

There is a long tradition of trademark holders relying on the public to create designations that they then adopt as trademark. Historically, this has been a long slow process. From the individual’s use of the term, to the acquisition of secondary meaning could take years. Web 2.0 social media has the potential to speed up this process. Frequently, these are nicknames for well-known brands, so they are potentially quite valuable. Trademark law is ambiguous regarding who owns a designation created by the public, if the individual claiming the mark have not appropriated the mark by actually using it in commerce. …

Reviving The Gatekeeping Function, Maayan Filmar-Perel

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation.

Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

Reviving The Gatekeeping Function, Maayan Filmar-Perel

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation. Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

Reviving The Gatekeeping Function, Maayan Filmar

maayan filmar

Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation. Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …

A Conversation On Judicial Decision-Making, Robin Feldman

Robin C Feldman

Both breathtakingly broad and minutely particular, the doctrine of patentable subject matter asks us to consider which innovations are of the type for which we might grant protection. Do we include living creatures, for example, or genes? Are computer algorithms included, and just what is an algorithm anyway? These are the types of questions that the Supreme Court has considered in a number of recent cases on patentable subject matter.

Looking closely at the recent cases, a fascinating conversation emerges between the Supreme Court and the Federal Circuit. It is a conversation not just about the nature of patents, but …

Consumers: The (Still) Missing Piece In A Piecemeal Approach To Privacy, Clark Asay

Clark Asay

U.S. consumers have little actual control over how companies collect, use, and disclose their personal information. This paper identifies two specific instances of this lack of control under U.S. law related to third-party disclosures, what I call the Incognito and Onward Transfer Problems. It then identifies the types of privacy harms that result and examines the advantages and possible drawbacks of a model law aimed at addressing these specific problems. The model law is based on a system of consumer notice and choice, the predominant method used in the U.S. to provide consumers with control over their information. Up until …

Intellectual Property Wrongs, Robin Feldman

Robin C Feldman

Intellectual property has become a pervasive presence in society. Seeping into every nook and cranny of American life, intellectual property casts a protective haze over everything from the words of an email to the sequence of genes. Increasingly, these rights are being pressed into the service of schemes that have little to do with the advancement of societal goals and much to do with societal waste. What do we, as a society, do when the rights that we have created with such lofty goals and noble heart are diverted toward less admirable pursuits, that is, when IP rights become the …

A Case For Legal Protection For Scientific Theories, Deepak Gupta

Deepak Gupta

This paper explores the idea of providing legal protection to scientific theories. The patent protection coverage has been extended to new technology areas such as genetically modified life forms, plants, semiconductor masks etc. However, scientific theories have been excluded from any form of legal protection, although they provide basic instruments of facilitating new developments in science and technology. Given, the current degradation in research in fundamental sciences, it is a suitable time to assess the reasons for the exclusion and determine if there is a need to provide any protection to the ‘Scientific Theories’. Further, in case legal protection is …

A Treaty Of Versailles - How Microsoft Wants To, And How They Could, End The Patent War, Andrew Pierz

Andrew Pierz

Android began as a project by Andy Rubin after developing the Sidekick. The project was soon acquired by Google and licensed as open-source technology for third parties, like Samsung and HTC, to use in their phones. After Microsoft fell in mobile market share, they began to pursue aggressive litigation and licensing deals. Google, after pledging to defend their manufacturing partners, announced they would acquire Motorola Mobility for their patent portfolio. The paper will explore the history of Android and Windows Mobile, the extent of Microsoft’s mobile patent portfolio, the structure of Microsoft’s various deals, the planned acquisition of Motorola Mobility …

Property Rights Legislation In Agricultural Biotechnology: United States And Argentina, Andres A. Gallo, Jay P. Kesan

Andres A. Gallo

The market for biotechnology products has expanded rapidly in the 1990s and is expected to give impulse to radical changes in agriculture around the world. Investment in research and development (R&D) of new seed varieties has become a key factor for agriculture development. In the last decades, the investment in R&D has switched from state sponsored research to private funding. At the same time, the market has moved towards a strong concentration in a few multinational firms, which now control most of the agricultural biotechnology R&D around the world. One of the most important issues regarding ag-biotechnology is the legal …

Copyright And Moral Norms, Alina Ng

Alina Ng

The role normative principles such as morality and ethics play in a legal system is a highly contentious point in jurisprudence and legal theory. Scholars and philosophers have often disagreed on whether laws should reflect and incorporate moral and ethical norms. The idea that there could be a necessary connection between law and objective morality has been forthrightly rejected by some jurists because of the heterogeneity of social views and beliefs about what is right and wrong conduct. This paper challenges the assertion by legal positivism that morality cannot be incorporated into legal analysis because they obfuscate analytical thinking about …

News On The Internet, Robert C. Denicola

Robert C Denicola

No abstract provided.

News On The Internet, Robert C. Denicola

Robert C Denicola

No abstract provided.

News On The Internet, Robert C. Denicola

Robert C Denicola

No abstract provided.

News On The Internet, Robert C. Denicola

Robert C Denicola

No abstract provided.

On Patent Policy And A Strictly Construed Written Description, Mario G. Menocal

Mario G. Menocal

The Federal Circuit’s 2010 decision in Ariad Pharmaceuticals v. Eli Lilly, re-ignited a polemic within the judiciary and academia concerning how language in 35 U.S.C. § 112, ¶ 1 providing for the written description should be applied. Some believe the written description should be strictly construed so as to deny property over anything not described even though it might be enabled. Others believe the written description should be read liberally, extending patent scope out to cover anything that is arguably enabled. Where history, precedent, and legal reasoning are unavailing in searching for an answer, an review of patent law’s policy …

News On The Internet, Robert C. Denicola

Robert C Denicola

No abstract provided.