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Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said Jan 2019

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

Articles

This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for ...


A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said Jan 2017

A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said

Articles

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis ...


Copyright's Illogical Exclusion Of Conceptual Art That Changes Over Time, Zahr K. Said Jan 2016

Copyright's Illogical Exclusion Of Conceptual Art That Changes Over Time, Zahr K. Said

Articles

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection.

There are of course both normative and descriptive questions around ...


Patented Electric Guitar Pickups And The Creation Of Modern Music Genres, Sean M. O'Connor Jan 2016

Patented Electric Guitar Pickups And The Creation Of Modern Music Genres, Sean M. O'Connor

Articles

This Essay provides an overview of how patents played a core role in developing world-changing musical genres. This may be surprising, as normally copyright law is associated with incentivizing advances in the creative arts. But as this Conference’s theme [The IP Platform: Supporting Invention and Inspiration] and presentations emphasize, the whole range of intellectual property (“IP”), especially when viewed as a platform, supports innovation across the spectrum of human ingenuity and creativity.

This Essay is also intended to be read in conjunction with a viewing of the live-music demonstration of how pickups transformed popular music, delivered at the Conference ...


Reforming Copyright Interpretation, Zahr K. Said Jan 2015

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the ...


The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor Jan 2015

The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor

Articles

The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems.

As the Supreme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the ...


The Lost "Art" Of The Patent System, Sean M. O'Connor Jan 2015

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the ...


Creators, Innovators, And Appropriation Mechanisms, Sean M. O'Connor Jan 2015

Creators, Innovators, And Appropriation Mechanisms, Sean M. O'Connor

Articles

Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who ...


In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz Jan 2015

In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz

Articles

Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism.

The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the ...


Crowdfunding's Impact On Start-Up Ip Strategy, Sean M. O'Connor Jan 2014

Crowdfunding's Impact On Start-Up Ip Strategy, Sean M. O'Connor

Articles

This Paper proceeds in Part I by reviewing the crowdfunding landscape and its potential benefits for start-ups, especially with regard to IP strategies. Part II examines the provisions of the JOBS Act and argues that the disclosure requirements of the CROWDFUND Act title will make the latter less attractive than other start-up financing options and may negatively affect start-ups’ IP strategies, in part by risking the disclosure of enabling aspects of patentable inventions.

Part III explores issues arising from the widespread involvement of many potentially unsophisticated investors who have no connection to the start-up. This contrasts with current unsophisticated investors ...


Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said Jan 2013

Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said

Articles

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure.

The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects ...


Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said Jan 2013

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

Articles

Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their ...


The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor Jan 2013

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Articles

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"—the recipients of federal funding—to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships.

The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices ...


Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said Jan 2013

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Articles

This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of ...


Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor Sep 2012

Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor

Articles

From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens ...


Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor Jan 2012

Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor

Articles

Part II of this Article describes the artisan and merchant guild systems of the Venetian Republic. Part III explores the emergence of the patent system as a means for foreigners and Venetian citizens to compete with the guilds, as well as the eventual addition of negative exclusive rights to the basic license form of positive patent privileges. In so doing, contrary to the speculation of some scholars, we reject with near certainty the contention that the first patent law statute granting exclusionary rights for—in modern parlance—technological inventions was a silk-specific directive enacted by the Venetian Grand Council in ...


Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor Jan 2012

Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor

Articles

This Essay focuses on the interrelation of three legal doctrines that affect the allocation of ownership and attribution of products of the human mind. The first, corporate personhood, grants corporations rights of personhood similar to those of natural persons. The second, the work-made-for-hire doctrine (WMFH) under copyright law, allocates ownership and attribution for copyrightable works to the employer of the natural-person author—even where that employer is a nonnatural, legal person such as a corporation. And the third, shop rights and the hired-to-invent exception, permits courts to grant equitable licenses or assignments to employers for their employees’ inventions.

These three ...


Serious Flaw Of Employee Invention Ownership Under The Bayh-Dole Act In Stanford V. Roche: Finding The Missing Piece Of The Puzzle In The German Employee Invention Act, Toshiko Takenaka Jan 2012

Serious Flaw Of Employee Invention Ownership Under The Bayh-Dole Act In Stanford V. Roche: Finding The Missing Piece Of The Puzzle In The German Employee Invention Act, Toshiko Takenaka

Articles

This article argues that the current Bayh-Dole Act is incomplete because the Act fails to provide a mechanism for contractors to secure the ownership of federally funded inventions from their employees. Part I of this Article discusses this flaw in the current Bayh-Dole Act, highlighted by Stanford v. Roche, and argues that a historical accident resulted in this flaw due to Congress's failure to pass a series of bills based on the German EIA. Passages in the Bayh-Dole Act suggest that the Act assumes a transfer by operation of law to secure the ownership of federally funded inventions through ...


Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz Jan 2012

Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz

Articles

Perhaps the law review literature does not need another article on the Federal Circuit’s case [320 F.3d 1317 (Fed. Cir. 2003, cert denied, 123 S.Ct. 2588 (2003)]. That case has received more than its share of attention from commentators, all criticizing Judge Rader’s majority opinion and most extolling the virtues of Judge Dyk’s dissent. Despite the storm of scholarly criticism, however, courts have followed Judge Rader’s opinion.

This Article tells the untold story of why courts have been wise to do so. The Article explains how commentators have argued that federal intellectual property law ...


The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor Jan 2011

The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor

Articles

The discovery and commercialization of biotechnology innovations often rely on collaborations between universities and for-profit firms. In the United States, the federal government funds much of university life sciences research and, under the Bayh-Dole Act, has some rights to research arising from that funding.

Two important strands of invention ownership issues in this web of collaboration arose under litigation that culminated in the recent United States Supreme Court decision Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc. (“Stanford v. Roche” or “Stanford”). The first is the question of whether Bayh-Dole trumps any other invention assignment ...


A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka Jan 2011

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.


Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz Jan 2011

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

Articles

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law.

The global demand for intellectual property law-trained lawyers triggered a "big bang" in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in ...


Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka Jan 2009

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

Articles

This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.


Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz Jan 2009

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater ...


The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz Jan 2009

The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz

Articles

The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie ...


A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet Jan 2009

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT ...


Defusing The "Atom Bomb" Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckeeson Et Al., Sean M. O'Connor Jan 2009

Defusing The "Atom Bomb" Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckeeson Et Al., Sean M. O'Connor

Articles

The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office's Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then.

This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of ...


The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison Jan 2008

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

Articles

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy ...


Using Stock And Stock Options To Minimize Patent Royalty Payment Risks After Medimmune V. Genentech, Sean M. O'Connor Jan 2007

Using Stock And Stock Options To Minimize Patent Royalty Payment Risks After Medimmune V. Genentech, Sean M. O'Connor

Articles

This Article proposes a more or less functional equivalent mechanism to a patent royalty stream through the use of stock and stock options in the licensee. The stock would coarsely track the overall fortunes of the licensee, while the options could be more finely tuned to vest and become exercisable upon events and milestones that would have been used for payments in a traditional license fee plus royalty stream licensing deal.

There may be problems of liquidity, of course, during the period where the licensee is still privately held and thus has no ready markets for its stock. But even ...


The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor Jan 2006

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor

Articles

The recent focus on patents as a hindrance to stem cell research may turn out to be a red herring. The real culprits are material transfer agreements (MTAs), which govern the transfer of cell lines and other biological materials. The MTA’s primary purpose in life sciences research is to set contractual rights and obligations between parties where one party transfers biological materials to the other. For example, MTAs often focus on the physical handling, use, and distribution of the materials by the recipient, ensuring that the recipient complies with regulations for research involving humans or animals.

Although these interests ...