Law Commons^™

Markets In Ip And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The purpose of market definition in antitrust law is to identify a grouping of sales such that a single firm who controlled them could maintain prices for a significant time at above the competitive level. The conceptions and procedures that go into “market definition” in antitrust can be quite different from those that go into market definition in IP law. When the issue of market definition appears in IP cases, it is mainly as a query about the range over which rivalry occurs. This rivalry may or may not have much to do with a firm’s ability to charge a …

Intellectual Property, Copyright, And Piracy: A Cultural View, Steven W. Staninger

Copley Library: Faculty Scholarship

Religion plays a major role in determining culture, and has an important effect on how laws are both written and enforced. The concept of intellectual property varies in different cultural traditions, and the dominant religion of a culture plays a major role in the how copyright is viewed and if it is respected or enforced. This paper briefly evaluates the cultures of three major religious and intellectual traditions to determine what, if any, effect their beliefs and values have on the respect for and enforcement of laws defending intellectual property and copyright.

Brief Of The Intellectual Property Amicus Brief Clinic Of The University Of New Hampshire School Of Law As Amicus Curiae In Support Of Neither Party, Susan M. Richey, John M. Greabe, Keith M. Harrison, J. Jeffrey Hawley

Law Faculty Scholarship

Amicus brief filed by the Intellectual Property Amicus Brief Clinic of the University of New Hampshire School of Law with the United States Court Of Appeals For The Ninth Circuit regarding United States v. Xavier Alvarez, Docket No. 11-210

Public Interest Analysis Of The Us Tpp Proposal For An Ip Chapter, Sean Flynn, Margot E. Kaminski, Brook K. Baker, Jimmy H. Koo

Joint PIJIP/TLS Research Paper Series

This briefing paper provides preliminary analysis of two leaked U.S. proposals for an intellectual property chapter in the Trans Pacific Partnership (TPP) agreement. The U.S. proposal, if adopted, would create the highest intellectual property protection and enforcement standards in any free trade agreement to date. Its provisions are primarily based on, and frequently go beyond, the maximalist and controversial standards of the Korea-US Free Trade Agreement (KORUS), the Anti-Counterfeiting Trade Agreement (ACTA) and US law, while negating the development-oriented flexibilities required by the 2007 New Trade Deal for developing countries and included in the US-Peru Free Trade Agreement. If adopted, …

Mergers, Market Dominance And The Lundbeck Case, Herbert J. Hovenkamp

All Faculty Scholarship

In Lundbeck the Eighth Circuit affirmed a district court’s judgment that a merger involving the only two drugs approved for treating a serious heart condition in infants was lawful. Although the drugs treated the same condition they were not bioequivalents. The Eighth Circuit approved the district court’s conclusion that they had not been shown to be in the same relevant market.

Most mergers that are subject to challenge under the antitrust laws occur in markets that exhibit some degree of product differentiation. The Lundbeck case illustrates some of the problems that can arise when courts apply ideas derived from models …

Inventing Norms, William Hubbard

All Faculty Scholarship

Patent law strives to promote the progress of technology by encouraging invention. Traditionally, scholars contend that patent law achieves this goal by creating financial incentives to invent in the form of exclusive rights to new technology. This traditional view of invention, however, fails to recognize that inventors are motivated by more than money. Like most people, inventors are also motivated by social norms, that is, shared normative beliefs favoring certain actions while disfavoring others. This Article argues that many Americans embrace social norms that favor and encourage successful invention. Because of these "inventing norms" inventors enjoy enhanced personal satisfaction and …

Antibiotic Resistance, Jessica Litman

Law & Economics Working Papers

In this essay, written for the 30th Anniversary of Cardozo’s Arts and Entertainment Law Journal, I revisit the ruinous litigation strategy copyright owners pursued after Napster to secure control of the market for personal uses of copyrighted works, which I wrote about ten years ago in War Stories, 20 Cardozo Arts & Ent. L.J. 337 (2002). The litigation campaign had effects that copyright owners now have reason to regret. Medical experts tell us that powerful antibiotics are highly effective in killing off both good and bad bacteria, but at a significant risk. Bugs that survive the treatment grow bigger, stronger, …

Why Full Open Access Matters, Michael Carroll

Articles in Law Reviews & Other Academic Journals

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.

Why Full Open Access Matters, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.

Future Of The Internet At Stake, Marc Greenberg

Publications

The Stop Online Piracy Act, H.R. 3261, introduced Oct. 26, has generated a firestorm of controversy, with critics assailing it for its chilling effect on the web and the Internet. After deciding to investigate this bill, I waded through piles of critiques, both pro and con. The bill itself, written in 78 mind-numbing pages of dense legislatese, on an initial read-through doesn't contain any "gotcha" terms that immediately support the conclusion of legislative overreach. The ostensible purpose of the bill is to combat the activities of alleged "rogue websites" based outside the U.S., which are engaged in widespread copyright infringement …

What Can I Do With This?: Deciphering Copyright And License Notices, Benjamin J. Keele, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Acta And Access To Medicines, Sean Flynn, Bijan Madhani

Joint PIJIP/TLS Research Paper Series

The Greens/EFA Internet Core Group in the European Parliament, and a collection of its individual members, commissioned this analysis of potential impacts of the Anti-Counterfeiting Trade Agreement (ACTA) on access to medicines in developing countries.” On the whole, ACTA negotiators created an agreement that shifts international “hard law” rules and “soft law” encouragements toward making enforcement of intellectual property rights in courts, at borders, by the government and by private parties easier, less costly, and more “deterrent” in the level of penalties. In doing so, it increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions …

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

Akron Law Faculty Publications

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 …

Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat

Faculty Scholarship

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.

By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …

Copyright Versus The Public Domain: Does The Constitution Allow Congress To Take Works From The Public Domain And Replace Those With Private Exclusive Rights?, Dennis D. Crouch, Ted Wright

Faculty Publications

This case arose out of U.S. treaty obligations to restore copyright to foreign authors who had failed to comply with the pre-1989 formalities in the law. Section 514 of the Uruguay Round Agreement Act (URAA) restores those copyrights and, in doing so, allowed thousands of widely disseminated works to be removed from the public domain. Petitioners challenge the law—arguing that the law overreaches constitutional authority and violates speech rights protected by the First Amendment.

Are Developing Countries Playing A Better Trips Game, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement.

Utilizing game theory and game metaphors, this Article disaggregates the "TRIPS game" into five different mini-games: …

10th Annual Conference On Recent Developments In Intellectual Property Law & Policy, Marc Greenberg, William T. Gallagher, Chester Chuang

Intellectual Property Law

Welcome to the 10 Annual Conference on Recent Developments in Intellectual Property Law andPolicy, presented by the Intellectual Property Law Center of Golden Gate University School of Law.

Altmetrics: A Manifesto, Jason Priem, Dario Taraborelli, Paul Groth, Cameron Neylon

Copyright, Fair Use, Scholarly Communication, etc.

First paragraph:

No one can read everything. We rely on filters to make sense of the scholarly literature, but the narrow, traditional filters are being swamped. However, the growth of new, online scholarly tools allows us to make new filters; these alt-metrics reflect the broad, rapid impact of scholarship in this burgeoning eco-system. We call for more tools and research based on altmetrics.

Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the 33rd Meeting of the German Society for Comparative Law (Gesellschaft für Rechtsvergleichung) in Trier, Germany, on September 16, 2011.

Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon

Scholarship Chronologically

The collection of legal rights commonly labeled "intellectual property" does not reflect any comprehensive master plan. Indeed, the label itself does a disservice in suggesting a set of laws with some coherence, cohesion, or at least commonality. 1 In fact, the various laws governing so-called intellectual property have evolved to address disparate concerns, at different times, and through distinct legal tools. 2 As a result, the canvas of intellectual property laws looks more like a messy collage - with overlaps, unmarked or blank spaces, and jagged edges - than a neat landscape characterized by careful planning and harmony.

The Ip Law Book Review, Vol. 2 #1, September 2011, William T. Gallagher, Chester Chuang

Intellectual Property Law

Reviews and Reviewers:

MAKING AND UNMAKING INTELLECTUAL PROPERTY: CREATIVE PRODUCTION IN LEGAL AND CULTURAL PERSPECTIVE edited by Mario Biagioli, Peter Jaszi, and Martha Woodmansee. Reviewed by Rebecca Tushnet, Georgetown University Law School

COPYRIGHT LAW AND THE PUBLIC INTEREST IN THE NINETEENTH CENTURY by Isabella Alexander. Reviewed by H. Tomas Gomez-Arostegui, Lewis & Clark Law School

THE GLOBAL GOVERNANCE OF KNOWLEDGE: PATENT OFFICES AND THEIR CLIENTS by Peter Drahos. Reviewed by Margo A. Bagley, University of Virginia School of Law

TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH edited by Graeme B. Dinwoodie and Mark D. Janis. Reviewed by Leah …

Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon

Faculty Scholarship

Justice Breyer began his classic article, The Uneasy Case for Copyright, with a line from Lord Macaulay, that copyright is "'a tax on readers for the purpose of giving a bounty to writers.'" Our society and its law values both writers and readers; the law cannot favor one side too much without losing some of the benefits the other side could have contributed. Make reading expensive and it will decrease, and readers might substitute less socially productive behaviors to take its place.

The Trips Enforcement Dispute, Peter K. Yu

Faculty Scholarship

2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.

After more than a decade of implementation, these provisions finally became the subject of a dispute before …

Librarians Can Improve Law Journal Publishing, Benjamin J. Keele, Michelle Pearse

Library Staff Publications

No abstract provided.

Market Integration And (The Limits Of) The First Sale Rule In North American And European Trademark Law, Irene Calboli

Research Collection Yong Pung How School Of Law

This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the …

Book Review Of Research Handbook On The Protection Of Intellectual Property Under Wto Rules And Research Handbook On The Interpretation And Enforcement Of Intellectual Property Under Wto Rules, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Journal Of Intellectual Property Law Editorial Board, 2011-2012, Journal Of Intellectual Property Law

Materials from All Student Organizations

No abstract provided.

Six Secret (And Now Open) Fears Of Acta, Peter K. Yu

Faculty Scholarship

In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.

Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already …

Calling Bulls**T On The Lanham Act: The 2(A) Bar For Immoral, Scandalous, And Disparaging Marks, Megan M. Carpenter, Kathryn T. Murphy

Law Faculty Scholarship

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services. However, Section 2(a) of the Lanham Act prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. …

Digital Copyright And Confuzzling Rhetoric, Peter K. Yu

Faculty Scholarship

The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists …