Law Commons^™

Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan

Faculty Scholarship

We don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.

This Essay …

The Costs Of Trademarking Dolls, Jessica Silbey

Faculty Scholarship

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s …

Trends In Private Patent Costs And Rents For Publicly-Traded United States Firms, James Bessen, Peter Neuhausler, John L. Turner, Jonathan Williams

Faculty Scholarship

We use detailed data to estimate the private costs and private rents of United States patents for publicly-traded firms. In analyzing costs, we first introduce a novel theoretical model to interpret our estimates. We then combine lawsuit data from Derwent Litalert with non-practicing entity (NPE) lawsuits collected by Patent Freedom, and use an event-study approach to estimate losses suffered by alleged infringers during 1984-2009. To estimate rents, we combine patent data from the USPTO and EPO with financial data from COMPUSTAT, and use market-value regressions to estimate the value of patent rents for publicly-traded US firms during 1979-2002. We find …

Can A Court Change The Law By Saying Nothing?, Paul Gugliuzza, Mark A. Lemley

Faculty Scholarship

Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36.

Including those no-opinion affirmances, the Federal Circuit has found …

Quick Decisions In Patent Cases, Paul Gugliuzza

Faculty Scholarship

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

Allocating Patent Litigation Risk Across The Supply Chain, Michael J. Meurer

Faculty Scholarship

The paradigmatic defendant in a patent lawsuit is a vertically integrated manufacturer. But much economic activity is conducted collaboratively by a supply chain of vertically disintegrated firms, and sometimes multiple firms are implicated in infringing activities, by making, selling, or using patented technology, or by contributing to or inducing another firm’s infringement. Often patent owners have the option of suing some or all of the members of a supply chain who contribute to the design, creation and marketing of a new technology.

Businesses increasingly contemplate the risk of patent infringement when they negotiate contractual relations to form a supply chain. …

Greeted With A Shrug: The Impact Of The Community Design System On United States Law, Stacey Dogan

Faculty Scholarship

In an era of increased harmonization of intellectual property laws worldwide, the United States’ treatment of product design looks like an anomaly. Since the European Community Design System went into effect in 2002, advocates in the US have urged Congress to follow suit and adopt sui generis design protection, particularly for fashion. The US Congress, however, has resisted the call and left design protection to the existing standards of trademark, copyright and design patent law.

This Chapter explores some of the reasons that the Community Design System has had so little purchase in US debates over design. The rejection of …