Law Commons^™

Tcl V. Ericsson: The First Major U.S. Top-Down Frand Royalty Decision, Jorge L. Contreras

Utah Law Faculty Scholarship

On December 21, 2017, the U.S. District Court for the Central District of California released its long awaited Memorandum of Findings of Fact and Conclusions of Law in TCL Communications v. Ericsson. In a lengthy and carefully crafted decision, Judge James Selna sets forth some important new points regarding the calculation of fair, reasonable and non-discriminatory (FRAND) royalties for standardsessential patents (SEPs). Among other things, the decision offers a strong endorsement of “top down” methodologies for the calculation of SEP royalties, and makes significant use of the non-discrimination (ND) prong of the FRAND commitment in arriving at a FRAND royalty …

The Impact Of Copyright Exceptions For Researchers On Scholarly Output, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

High prices restrict access to academic journals and books that scholars rely upon to author new research. One possible solution is the expansion of copyright exceptions allowing unauthorized access to copyrighted works for researchers. I test the link between copyright exceptions for health and science researchers and their publishing output at the country-subject level. I find that scientists residing in countries that implement more robust research exceptions publish more papers and books in subsequent years. This relationship between copyright exceptions and publishing is stronger in lower-income countries, and stronger where there is stricter copyright protection of existing works.

Surveying The Scalability Of Open Access Monograph Initiatives: Final Report, Christopher Barnes,, Rebecca Welzenbach, Kathleen Folger

Copyright, Fair Use, Scholarly Communication, etc.

In June of 2016, the University of Michigan Library (MLibrary) and Knowledge Unlatched (KU) announced the start of a collaboration “to study and overcome remaining obstacles to the spread of open access scholarly publishing in the humanities and social sciences.”1 This survey grew out of that partnership and was designed to gather data useful for determining the scalability of library-supported open access (OA) initiatives focusing on monographs in the Humanities and Social Sciences such as Luminos, Open Book Publishers, and KU. The survey was designed and conducted by Christopher A. Barnes, Ph.D., while a graduate student in library and information …

Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

The absence of stated principles underlying the articulation of the black letter and comments – principles that the Reporters have said they will provide at the end of the process – continues to trouble the Draft. It remains unclear whether the Reporters are synthesizing positive law, or seeking to reform it. We are not contending that ALI should not push for law reform (even though Principles or some other form might provide a preferable and more transparent vehicle for aspirational endeavors), but we do think the objectives and methodology should be clear from the outset. We remain concerned that ALI’s …

Eu Sep Communication Summary And Commentary - Tilec 2nd Conference On Competition, Standardization And Innovation, Jorge L. Contreras

Utah Law Faculty Scholarship

These slides briefly summarize the main points of the European Commission's Nov. 29, 2017 Communication on Standards Essential Patents (SEPs)

Oer State Policy Playbook [Draft], Sparc

Copyright, Fair Use, Scholarly Communication, etc.

Why State-Level OER Policy?

The rising cost of higher education is about more than tuition—expensive textbooks and course materials remain a looming barrier to college affordability and access. Open educational resources (OER) are a solution to high-cost materials and state legislators are starting to take notice. Open Educational Resources (OER) are teaching and learning materials that can be freely used, downloaded and shared to better serve all students. OER include all kinds of content such as textbooks, lesson plans, assignments, games, and more, and can include printed materials, not just digital materials. Nearly half of all states have considered OER …

Mandatory Deposit Laws In Selected Jurisdictions (2017 Update), Global Legal Research Center

Copyright, Fair Use, Scholarly Communication, etc.

Summary

This report, which updates and expands on a report prepared by Law Library staff in March 2015, contains data on 131 countries, indicating whether or not published books are subject to a mandatory deposit requirement at the national level and, if so, how many copies are required, where they must be deposited, and whether the deposit is part of the copyright system. Citations to the controlling legislation for mandatory deposits are provided. In all but thirteen of the jurisdictions surveyed, deposits are required. For some of these thirteen jurisdictions, deposits are voluntary, while in others, no information regarding deposit …

Next Generation Repositories: Behaviours And Technical Recommendations Of The Coar Next Generation Repositories Working Group, Confederation Of Open Access Repositories, Eloy Rodrigues, Kathleen Shearer

Copyright, Fair Use, Scholarly Communication, etc.

In April 2016, the Confederation of Open Access Repositories (COAR) launched the Next Generation Repository Working Group to identify new functionalities and technologies for repositories. In this report, we are pleased to present the results of the work of this group, including recommendations for the adoption of new technologies, standards, and protocols that will help repositories become more integrated into the web environment and enable them to play a larger role in the scholarly communication ecosystem.

At COAR, we believe the globally distributed network of more than 3000 repositories can be leveraged to create a more sustainable and innovative system …

The Antitrusting Of Patentability, Saurabh Vishnubhakat

Faculty Scholarship

Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …

Evaluating Market Reactions To Non-Practicing Entity Litigation, Emiliano Giudici, Justin Blount

Faculty Publications

An ongoing debate in patent law involves the role “non-practicing entities,” sometimes called “patent trolls,” serve in the patent system. Some argue they serve as valuable market intermediaries, while others contend they are a drain on innovation and an impediment to a well-functioning patent system. This Article adds to the data available in this debate by conducting an event study that analyzes the market reaction to patent litigation filed by large “mass aggregator” non-practicing entities against large publicly traded companies. This study advances the literature by attempting to reproduce the results of previous event studies done in this area with …

Exhaustion And Parallel Trade, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble spoke at the Institute of European Studies of Macau (IEEM) IP Programme 2017: The Professional Intellectual Property Update on 8 November 2017 at the premises of the Hong Kong Intellectual Property Department of the Government of the HKSAR (HKIPD) in Wanchai. The event, hosted by IEEM, provided an overview of major important legal decisions and developments in intellectual property law and policy across the globe. During her session, "Exhaustion and Parallel Trade," Trimble explored the exhaustion doctrine and its current implications.

The Geoblocking Of Legitimate Content, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble joined distinguished practitioners, judges, and academics from all over the world to contribute to the 17th annual Intellectual Property Seminar hosted by the Institute of European Studies in Macau. The theme of the two day seminar was, "IP Rights: Obstacles or IP Opportunities to Legitimate Trade?"

Creative Communities And Intellectual Property Law, Laura A. Heymann

Popular Media

No abstract provided.

The Ip Law Book Review, V. 8#1, William T. Gallagher

Intellectual Property Law

AUTHORS IN COURT: SCENES FROM THE THEATER OF COPYRIGHT, by Mark Rose. Reviewed by Robert Spoo, The University of Tulsa College of Law

COPYRIGHT BEYOND LAW: REGULATING CREATIVITY IN THE GRAFFITI SUBCULTURE, by Marta Iljadica. Reviewed by Zahr K. Said, University of Washington School of Law

CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE by Anthea Kraut. Reviewed by Carys Craig, Osgoode Hall Law School, York University

Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu

Faculty Scholarship

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' withdrawal and contends that the TPP will exert considerable influence regardless of whether it is dead or alive.

The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral …

Spec Kit 357 Libraries, Presses, And Publishing November 2017, Laurie N. Taylor, Brian W. Keith, Chelsea Dinsmore, Meredith Morris-Babb

Copyright, Fair Use, Scholarly Communication, etc.

Many Association of Research Libraries (ARL) members have robust and long-standing publishing activities, often in collaboration with or running parallel to the press of the larger institutional entity. As reported in the Association of American University Presses (AAUP) 2015–2016 annual report, 30 AAUP member presses are in libraries. Eighty-one institutions are both ARL and AAUP members, and at 21 of those institutions, the press reports to the library. Other libraries—including Amherst College Press and the University of Cincinnati Press—launched new presses within libraries. Most of the 123 ARL member libraries are engaged in publishing or publishing support activities such as …

Laws On Erasure Of Online Information: Canada, France, European Union, Germany, Israel, Japan, New Zealand, Norway, Portugal, Russia, Spain, United Kingdom, Luis Acosta

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary by Luis Acosta, Chief, Foreign, Comparative, and International Law Division II, Law Library of Congress (United States), Global Legal Research Center

This report describes the laws of twelve jurisdictions that have some form of remedy available enabling the removal of online data based on harm to individuals’ privacy or reputational interests, including but not limited to defamation. Six of the countries surveyed are within the European Union (EU) or the European Economic Area, and therefore have implemented EU law. Five non-EU jurisdictions are also surveyed.

Comparative analysis across jurisdictions presents terminological challenges, because legal language across jurisdictions seems …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

Brief For 72 Professors Of Intellectual Property Law As Amici Curiae In Support Of Respondents In Oil States Energy V. Greene's Energy, Gregory Reilly, Mark Lemley, Arti Rai

All Faculty Scholarship

This is a brief of 72 IP professors opposing the claim in Oil States that the IPR procedure is unconstitutional.Petitioner argues that only a court – indeed, only a jury – has the power to decide that the United States Patent and Trademark Office erred in granting a patent. That argument flies in the face of the history of patent law and this Court’s precedents.Patents are a creature of statute: as early as 1834, this Court specifically recognized that there is no “natural” or common law right to a patent. Rather, under its Article I power to establish a patent …

Enforcement Of Intellectual Property At Trade Shows: A Comparative Perspective, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials via webcast at a Roundtable on Protecting and Enforcing IP in the Trade Show Context hosted by the United States Patent and Trademark Office's Global Intellectual Property Academy in Alexandra, Virginia. Professor Trimble discussed various enforcement routes and their respective challenges. She also introduced mechanisms available in Europe and compared them to current mechanisms in the United States.

Three Strikes For Copyright, Jessica Silbey

Faculty Scholarship

How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players …

An Empirical Study Of University Patent Activity, Brian L. Frye, Christopher J. Ryan

Law Faculty Scholarly Articles

Since 1980, a series of legislative acts and judicial decisions have affected the ownership, scope, and duration of patents. These changes have coincided with historic increases in patent activity among academic institutions.

This article presents an empirical study of how changes to patent policy precipitated responses by academic institutions, using spline regression functions to model their patent activity. We find that academic institutions typically reduced patent activity immediately before changes to the patent system, and increased patent activity immediately afterward. This is especially true among research universities. In other words, academic institutions responded to patent incentives in a strategic manner, …

Brief Of Public Knowledge, The Electronic Frontier Foundation, Engine Advocacy, And The R Street Institute As Amici Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

Where Congress places conditions upon the patent grant in furtherance of the public interest in individual liberty, Congress acts at the apex of its powers under the Constitution. Inter partes review is a legislative condition on the patent grant, designed for an innovative modern world, specifically crafted to dispose of erroneously issued patents that burden the public. It is the traditional place of Congress to make these balanced political judgments, and Article III poses no barrier to Congress executing its Article I obligation to protect the public by limiting patents.

A Spatial Critique Of Intellectual Property Law And Policy, Peter K. Yu

Faculty Scholarship

Although geography has had an important and lasting impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions.

This article aims to provide a systematic analysis of the linkage …

Optimal Remedies For Patent Infringement, Keith N. Hylton, Mengxi Zhang

Faculty Scholarship

This paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment.

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Appellant And In Support Of Reversal, Mark Mckenna, Rebecca Tushnet

Court Briefs

ASTM’s fundamental complaint is about unauthorized use of its intangible content—the standards for which it claims copyright ownership. Dastar unambiguously holds, however, that only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the authorship of the standards or their authorization is not actionable. ASTM cannot avoid Dastar just because Public Resource creates digital copies of those standards. Consumers encounter the ASTM marks only as part of the standards, into which ATSM chose to embed the marks. As a result, any “confusion” could only be the result of the content itself. Dastar teaches that …

Copyright For Publishing 2, Paul Royster

Copyright, Fair Use, Scholarly Communication, etc.

For B. Rilett's Editing & Publishing class, August 28, 2017. Updated for Sept. 13, 2018.

The 2.5% Commitment, David W. Lewis

Copyright, Fair Use, Scholarly Communication, etc.

The commitment: Every academic library should commit to contribute 2.5% of its total budget to support the common infrastructure needed to create the open scholarly commons.

Ip Update On The U.S., Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble spoke at the Institute of European Studies of Macau (IEEM) IP Programme 2017: The Professional Intellectual Property Update on 8 November 2017 at the premises of the Hong Kong Intellectual Property Department of the Government of the HKSAR (HKIPD) in Wanchai. The event, hosted by IEEM, provided an overview of major important legal decisions and developments in intellectual property law and policy across the globe. During her session, ‘New Developments in IP Law – A Panel Birds-Eye View and Discussion’, Trimble explored significant and recent developments in IP law in the U.S.A.

Connect Oer Annual Report 2016-2017, Brady Yano

Copyright, Fair Use, Scholarly Communication, etc.

Earlier this year, SPARC launched Connect OER—a platform to share and discover information about Open Educational Resources (OER) activities at campuses across North America. Through Connect OER, academic libraries create and manage profiles about their institution’s efforts on OER, producing valuable data that we use to populate a searchable directory and produce an annual report.

As the first Connect OER Annual Report, this document summarizes insights from the Connect OER pilot, which ran from May - July 2017. The data encompass 65 SPARC member libraries spanning 31 U.S. states and five Canadian provinces who participated in the pilot. Our analysis …