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Full-Text Articles in Law
Two Decades Of Trips In China, Peter K. Yu
Two Decades Of Trips In China, Peter K. Yu
Faculty Scholarship
This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …
When The Chinese Intellectual Property System Hits 35, Peter K. Yu
When The Chinese Intellectual Property System Hits 35, Peter K. Yu
Faculty Scholarship
This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.
The Field Of Invention, Saurabh Vishnubhakat
The Field Of Invention, Saurabh Vishnubhakat
Faculty Scholarship
Federal courts can ill afford to ignore, assume, or improvise a pervasively important administrative power that the Patent Office exercises regularly and effectively: technology classification. This agency-court asymmetry has persisted for decades but has now become unmanageably problematic for two related reasons. First, Supreme Court guidance, patent reform legislation, and academic commentary have all broadly rejected long-standing patent exceptionalism in administrative law, while making the Patent Office a major substitute for federal courts in resolving patent disputes. Still, patent doctrine has been slow to correct, particularly in judicial deference to agency action. Second, criticisms of the patent system are highly …
An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat
An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat
Faculty Scholarship
This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …
Five Decades Of Intellectual Property And Global Development, Peter K. Yu
Five Decades Of Intellectual Property And Global Development, Peter K. Yu
Faculty Scholarship
The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.
On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …
What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat
What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat
Faculty Scholarship
This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is …
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Faculty Scholarship
The paper below largely is an extract of the testimonial filed by the authors to the Secretary of the ITC in response to the Notice on the Federal Register dated August 29, 2013 titled Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy. Where required, the paper also draws from the written submissions that the authors made to the United States Trade Representative’s (hereinafter, USTR) office on the related question of whether India deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property …
Cognitive Economy And The Trespass Fallacy: A Response To Professor Mossoff, Saurabh Vishnubhakat
Cognitive Economy And The Trespass Fallacy: A Response To Professor Mossoff, Saurabh Vishnubhakat
Faculty Scholarship
In his recent essay The Trespass Fallacy in Patent Law, Professor Adam Mossoff argues cogently that the metaphor of trespass has become a misused basis for patent indeterminacy critiques that it cannot conceptually or empirically support. While sharing his caution that metaphors are not to be trifled with, this reply suggests that trespass has both a smaller role and a larger potential benefit in the debate on patent indeterminacy, and advances an opposite solution.
Intellectual Property Geographies, Peter K. Yu
Intellectual Property Geographies, Peter K. Yu
Faculty Scholarship
Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography …