Law Commons^™

Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government.

Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government.

Intellectual Property, Innovation And The Retail Industry, Singapore Management University

Perspectives@SMU

Think ahead to protect your intellectual property, and leverage on it to deliver customer value

Copyright Lost, Glynn Lunney

Faculty Scholarship

In this essay, I revisit my 2001 article, The Death of Copyright, for the Franklin Pierce Center for Intellectual Property’s Redux Conference. In The Death of Copyright, I worried that copyright, as a law that serves “to promote the Progress of Science,” had died. Instead, with the enactment of the Digital Millennium Copyright Act, I feared that copyright had returned to a system of guild privileges that served only to maximize the rents of copyright owners. At the time I wrote the article, file sharing had just begun. Yet, the content industries were already proclaiming that the sky was falling. …

Tpp, Rcep And The Future Of Copyright Norm-Setting In The Asian Pacific, Peter K. Yu

Faculty Scholarship

The past decade has seen two mega-regional intellectual property norm-setting exercises focusing on countries in the Asian Pacific region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Taken together, these two mega-regional norm-setting exercises will have unlimited potential to shape future copyright norms in the Asian Pacific region.

For countries involved in either the TPP or RCEP negotiations, legal obligations concerning new protection and enforcement standards will have to be incorporated into domestic law once the applicable agreement enters into force. These standards can be quite burdensome, as they often exceed what is currently required by the …

Scènes À Faire As Identity Trait Stereotyping, Jasmine C. Abdel-Khalik

Faculty Works

Judge Learned Hand's decision in Nichols v. Universal Pictures is unquestionably seminal in the development of copyright law. For the first time, a court articulated that stock characters, a form of scènes à faire, are so fundamental that all should have access. Therefore, a stock character, like one defined simply as a butcher with a cleaver and in a white coat, is not copyright protectable material.

However, the specific stock characters identified by Judge Hand raise some previously unexplored questions. The decision identifies two stock characters: "the low comedy Jew and Irishman." What exactly is “the low comedy Jew and …

The User Rights Database: Measuring The Impact Of Opening Copyright Exceptions, Sean Flynn, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

International and domestic copyright law reform around the world is increasingly focused on how copyright exceptions — a.k.a. “user rights” —should be expanded to promote maximum innovation, creativity, and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We are developing such a tool, which we …

Letter To Council Members Regarding Council Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 2 (CD2) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 18-19, 2018. We have had – and continue to have – significant concerns about the project and the work to date. We note that numerous parties have expressed concerns about CD2, including the US Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, academics and other Advisers, and that the US Copyright Office and the New York City Bar Association’s Committee on Copyright and Literary Property have done so …

Open Access At Mit And Beyond: A White Paper Of The Mit Ad Hoc Task Force On Open Access To Mit’S Research, Katharine Dunn, Hal Abelson, Chris Bourg, Ellen Finnie

Copyright, Fair Use, Scholarly Communication, etc.

MIT researchers, students, and staff have long valued and put into action MIT’s mission to generate and disseminate knowledge by openly and freely sharing research and educational materials. Indeed, the Institute has been at the forefront of the sharing culture: MIT launched OpenCourseWare (OCW), a free webbased publication of virtually all MIT course content in 2001; in 2002 released DSpace, an open-source platform for managing research materials and publications co-created by MIT Libraries staff; and adopted the first campus-wide faculty open access (OA) policy in the US in 2009.

Convening an open access task force was one of the 10 …

Liability Rules For Health Information, Jorge L. Contreras, Francisca Nordfalk

Utah Law Faculty Scholarship

The recent trend toward propertization of health data could pose significant challenges to biomedical research and public health. Property rule systems can result in sizable up-front costs in the acquisition of consent from individual data subjects, as well as the ongoing risk that data subjects will retract consent or object to unanticipated data uses, thus compromising existing data resources and analyses. We argue that property-based approaches to health data should be rejected in favor of liability rule frameworks for the protection of individual privacy interests. We demonstrate that liability rule frameworks for data governance are not only desirable from a …

Implications Of Reposting Copyright Material Online And Svensson Distinguished In Cjeu Judgment: Land Nordrhein-Westfalen V Dirk Renckhoff, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

This comment considers the CJEU’s recent decision in Land Nordrhein-Westfalen v Dirk Renckhoff (Case C-161/17) EU:C:2018:634, concerning the legality of reposting copyright-protected material on the Internet. Notably, the earlier decision of the CJEU in Svensson – which was a case on hyperlinking and although cited fairly extensively in argument – was carefully distinguished on the facts.

The Effect Of Frand Commitments On Patent Remedies, Jorge L. Contreras, Thomas F. Cotter, Sang Jo Jong, Brian J. Love, Nicolas Petit, Peter George Picht, Norman Siebrasse, Rafał Sikorski, Masabumi Suzuki, Jacques De Werra

Utah Law Faculty Scholarship

This chapter addresses a special category of cases in which an asserted patent is, or has been declared to be, essential to the implementation of a collaboratively-developed voluntary consensus standard, and the holder of that patent has agreed to license it to implementers of the standard on terms that are fair, reasonable and non-discriminatory (FRAND). In this chapter, we explore how the existence of such a FRAND commitment may affect a patent holder’s entitlement to monetary damages and injunctive relief. In addition to issues of patent law, remedies law and contract law, we consider the effect of competition law on …

Global Rate Setting: A Solution For Standard-Essential Patents?, Jorge L. Contreras

Utah Law Faculty Scholarship

The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out continue to arise, spurring competition authorities to investigate and intervene in private standard-setting. And litigation regarding compliance with FRAND commitments has led an increasing number of courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different …

Prestigious Mccarthy Institute Moves To Golden Gate University, Golden Gate University

Press Releases

tarting in August 2018, the McCarthy Institute, the world's preeminent trademark, consumer behavior, and branding institute, will be located jointly in the law and business schools at Golden Gate University in downtown San Francisco.

The Prestigious Mccarthy Institute Moves To Golden Gate University, Golden Gate University School Of Law

McCarthy Institute

Press release:

Starting in August 2018, the McCarthy Institute, the world’s preeminent trademark, consumer behavior, and branding institute, will be located jointly in the law and business schools at Golden Gate University in downtown San Francisco.

The Rent’S Too High: Self-Archive For Fair Online Publication Costs, Robert Thibault, Amanda Macpherson, Stevan Harnad, Amir Raz

Copyright, Fair Use, Scholarly Communication, etc.

The main contributors of scientific knowledge—researchers—generally aim to disseminate their findings far and wide. And yet, publishing companies have largely kept these findings behind a paywall. With digital publication technology markedly reducing cost, this enduring wall seems disproportionate and unjustified; moreover, it has sparked a topical exchange concerning how to modernize academic publishing. This discussion, however, seems to focus on how to compensate major publishers for providing open access through a pay-to-publish model, in turn transferring financial burdens from libraries to authors and their funders. Large publishing companies, including Elsevier, Springer Nature, Wiley, PLoS, and Frontiers, continue to earn exorbitant …

The Rent’S Too High: Self-Archive For Fair Online Publication Costs, Robert T. Thibault, Amanda Macpherson, Stevan Harnad, Amir Raz

Psychology Faculty Articles and Research

The main contributors of scientific knowledge—researchers—generally aim to disseminate their findings far and wide. And yet, publishing companies have largely kept these findings behind a paywall. With digital publication technology markedly reducing cost, this enduring wall seems disproportionate and unjustified; moreover, it has sparked a topical exchange concerning how to modernize academic publishing. This discussion, however, seems to focus on how to compensate major publishers for providing open access through a pay-to-publish model, in turn transferring financial burdens from libraries to authors and their funders. Large publishing companies, including Elsevier, Springer Nature, Wiley, PLoS, and Frontiers, continue to earn exorbitant …

Christmas In July: A Response To David Fagundes, Why Less Property Is More, Brian L. Frye

Law Faculty Scholarly Articles

A response to David Fagundes, Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, 103 Iowa L. Rev. 1361 (2018).

Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney

Faculty Scholarship

Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, …

University Of Nebraska-Lincoln Digitalcommons: Statistical Report, August 2018, Deeann Allison, Paul Royster, Sue A. Gardner, Margaret Mering, Linnea Fredrickson

Copyright, Fair Use, Scholarly Communication, etc.

To: Deeann Allison, Director, Media & Repository Services, UNL Libraries

I am pleased to transmit the following statistics report on the UNL DigitalCommons, http://digitalcommons.unl.edu

The DigitalCommons is the “institutional repository” for UNL. It’s function is to gather the intellectual output of the university for online public access. It was established in 2005, and now holds 99,000 papers, making it the 3rd largest in the United States, trailing only the University of California system (190,000) and the University of Michigan (120,000). It recently surpassed 50 million downloads, and is the nation’s current leader in that category. Alexa.com reports that the repository …

Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras

Utah Law Faculty Scholarship

In November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too …

The Public Trust In Public Art: Property Law's Case Against Private Hoarding Of “Public” Art, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important …

The Anticommons At Twenty: Concerns For Research Continue, Jorge L. Contreras

Center for Law and Biomedical Sciences (LABS)

Twenty years after Heller and Eisenberg predicted the emergence of an anticommons in biomedical research, this article assesses the currency of the anticommons theory. While a patent-fueled research anticommons does not appear to have emerged in the ways that Heller and Eisenberg envisioned, there are new ways in which the fragmentation of rights -- whether through trade secrecy, narrow licensing or data propertization -- continues to threaten research and commercial development. The anticommons theory thus remains as relevant today as it was when it was first proposed.

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Faculty Scholarship

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

Operas White Paper: Open Access Business Models, Lara Speicher, Margo Bargheer, Maciej Maryl, Sven Fund, Max Mosterd, Frances Pinter, Lorenzo Armando, Irakleitos Souyioultzoglou, Martin Paul Eve, Delfim Leão

Copyright, Fair Use, Scholarly Communication, etc.

The white paper on Business Models for Open Access proposes that there is no single ideal business model for Open Access that can be adopted as standard. It describes the current landscape in which there are multiple approaches to OA publishing, many of which are adopted by OPERAS members to suit their particular circumstances, although the APC and BPC models still predominate especially among commercial publishers. The paper describes the business models adopted by members both from the point of view of publishers, and of service providers such as Knowledge Unlatched, as well as looking at models emerging elsewhere such …

Digital Legal Deposit In Selected Jurisdictions: Australia, Canada, China, Estonia, France, Germany, Israel, Italy, Japan, Netherlands, New Zealand, Norway, South Korea, Spain, United Kingdom, Peter Roudik, Kelly Buchanan, Tariq Tariq Ahmad, Laney Zhang, Nerses Isajanyan, Nicolas Boring, Jenny Gesley, Ruth Levush, Dante Figueroa, Sayuri Umeda, Elin Hofverberg, Graciela Rodriguez-Ferrand, Clare Feikert-Ahalt

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary by Peter Roudik, Assistant Law Librarian of Congress for Legal Research (United States)

This report, prepared by the staff of the Global Legal Research Directorate of the Law Library of Congress, surveys laws regulating the mandatory legal deposit of electronic materials. Fifteen countries representing different approaches to collecting, describing, preserving, and storing digital and non-print documents and providing access to them are included in the study. (See map, below.) These countries were selected because of their long-term experience with collecting online and offline electronic publications. Each country survey provides information on the history of edeposit programs in the …

Three New Metrics For Patent Examiner Activity: Office Actions Per Grant Ratio (Ogr), Office Actions Per Disposal Ratio (Odr), And Grant To Examiner Ratio (Ger), Shine Tu

Law Faculty Scholarship

The current metric for examiner prosecution activity is allowance rate, which is calculated by dividing the total number of allowances by the sum of the allowances and abandonments (allowance rate = total allowance/(total allowances total abandonments)). Importantly, however, allowance rates do not consider an examiner’s pending docket. Specifically, allowance rates do not fully capture if the examiner is simply writing office actions thereby prolonging prosecution or allowing cases. This study rectifies this failure by creating and analyzing a dataset that captures every active examiner’s current docket. Calculating the Office Action per Grant Ratio (OGR = Total # of Office Actions/Total …

Copyright And Underwater Cultural Heritage, Tyler T. Ochoa

Faculty Publications

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light …

United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Copyright User Rights And Remedies: An Access To Justice Perspective, Pascale Chapdelaine

Law Publications

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to …