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Full-Text Articles in Law
What Happened To The Public’S Interest In Patent Law?, Kristen Jakobsen Osenga
What Happened To The Public’S Interest In Patent Law?, Kristen Jakobsen Osenga
Law Faculty Publications
Protecting intellectual property is the government’s most important tool to encourage innovation, as our country has understood since its founding. The Constitution provides for the grant of exclusive patent rights to “promote the progress of science and the useful arts.” Thomas Jefferson, who was initially skeptical of the value of patents, later remarked, “An Act of Congress authorising [sic] the issuing patents for new discoveries has given a spring to invention beyond my conception.” From the very first patent, issued in 1790, to the 10 millionth patent, issued in June 2018,4 the United States has seen remarkable amounts of invention …
Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight
Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight
Law Student Publications
This comment's purpose is to explore whether the principles announced in Kirtsaeng should apply to the patent exhaustion doctrine. Part I begins by examining the history of patent exhaustion jurisprudence. It also introduces the competing theories international exhaustion and territorial exhaustion. Part II analyzes the effect of the recent Supreme Court decision in Kirtsaeng on the exhaustion doctrine in copyright. Part III contends that exhaustion doctrine polices the same practical problems in copyright as it does in patent law. Finally, the conclusion argues for an extension of the Kirtsaeng holding to the patent exhaustion doctrine.
Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson
Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson
Law Faculty Publications
One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. This study fills that gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motions, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. The data we collect allow us to examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds …
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Law Faculty Publications
Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection ofthe information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that …
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Law Student Publications
This comment proposes a totality-of-the-circumstances approach to analyzing biological molecules under § 101 such that both the structure and its information is examined. Part II of this note reviews relevant precedent in patent law. Part III analyzes the Federal Circuit's Myriad decision, and Part IV explains the potential effects of the recent Supreme Court decision Mayo Collaborative Services v. Prometheus Laboratories. Finally, in Part V, the patent eligibility of human genes is examined. Analyzing this issue under the proposed totality-of-the-circumstances approach, this article concludes that isolated human genes are not patentable.
Who's The Author? A Bright-Line Rule For Specially Commissioned Works Made For Hire, Richard D. Palmieri
Who's The Author? A Bright-Line Rule For Specially Commissioned Works Made For Hire, Richard D. Palmieri
Law Student Publications
This comment argues that the best way to clarify the answer to the question "Who's the author?" (and thus to clarify whether the creator has a termination right) is to resolve the circuit split in favor of a bright-line rule requiring execution of the written agreement prior to the creation of the work. Part I introduces the legal framework under which the issue must be analyzed. Part II reviews the holdings on each side of the circuit split. Part III presents the arguments that both proper statutory construction of U.S. copyright law and the legislative history of the termination right, …
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
Law Student Publications
First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need …
Book Review: Beyond Intellectual Property: Matching Information Protection To Innovation, Kristen Osenga
Book Review: Beyond Intellectual Property: Matching Information Protection To Innovation, Kristen Osenga
Law Faculty Publications
William Kingston frames this book around a clearly stated premise: the focus of information protection regimes has shifted from benefiting the public to benefiting private individuals with interests in the game—and this shift is not good. Early on, protection of information was shaped by actors with no personal stake but rather a desire to encourage invention and innovation for the public good. These actors were primarily limited by constitutional provisions and bureaucratic inefficiencies. As time went on,and as information became a more important commodity, information protection schemes were fashioned, or perhaps twisted, by the parties that would derive the most …
Making Virtual Copyright Work, Matthew R. Farley
Making Virtual Copyright Work, Matthew R. Farley
Law Student Publications
This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …
Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore
Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore
Law Student Publications
The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, …
Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia
Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia
Law Faculty Publications
This Article adds to the empirical literature examining how the Federal Circuit treats patent-law issues internally by comparing the decision making of the Federal Circuit with that of other courts of appeals. It does so by measuring two statistics from overall written opinions: the percentage of dissents and the percentage of en bane reviews. The data is taken from the Third, Fifth, Ninth, Tenth, District of Columbia, and Federal Circuits between 1998 and 2009. The data in the study show that the Federal Circuit has the second-highest percentage of dissents among the circuits studied (behind only the Ninth Circuit) and …
A Patent Panacea?: The Promise Of Corbinized Claim Construction, Jonathan L. Moore
A Patent Panacea?: The Promise Of Corbinized Claim Construction, Jonathan L. Moore
Law Student Publications
A patent's claims define the scope of a patent-holder's right to exclude others. Because patent infringement actions often hinge on how a court construes claim terms, the interpretative approach that a court uses has a significant effect on the scope ofpatent rights. This article examines claim construction through the lens of contract law. In theory, the Federal Circuit has explicitly rejected the application of contract interpretation principles to claim construction, despite historical acceptance of the patent-contract analogy. In practice, however, the Federal Circuit applies the theory of contract interpretation espoused by Samuel Williston, a theory that focuses on the text …
Information May Want To Be Free, But Information Products Do Not: Protecting And Facilitating Transactions In Information Products, Kristen Jakobsen Osenga
Information May Want To Be Free, But Information Products Do Not: Protecting And Facilitating Transactions In Information Products, Kristen Jakobsen Osenga
Law Faculty Publications
Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection of the information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and …
Copying In Patent Law, Christopher A. Cotropia
Copying In Patent Law, Christopher A. Cotropia
Law Faculty Publications
Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability. Nonetheless, copying does play a role in some subsidiary patent doctrines, including damages rules, willfulness, and obviousness. More significantly, the rhetoric of patent law …
Accidental Rights, James Gibson
Accidental Rights, James Gibson
Law Faculty Publications
Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.
Patent Claim Interpretation Methodologies And Their Claim Scope Paradigms, Christopher A. Cotropia
Patent Claim Interpretation Methodologies And Their Claim Scope Paradigms, Christopher A. Cotropia
Law Faculty Publications
The optimal scope of patent protection is an issue with which patent system observers have struggled for decades. Various patent doctrines have been recognized as tools for creating specific patent scopes and, as a result, implementing specific patent theories. One area of patent law that has not been addressed in the discussion on patent scope and theories is patent claim interpretation. This omission is particularly noteworthy because of the substantive role patent claims and the interpretation thereof play in the patent system, namely the framing of questions of patent infringement and validity. This Article will explore the not-yet-discussed relationship between …
Re-Reifying Data, James Gibson
Re-Reifying Data, James Gibson
Law Faculty Publications
There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …