Law Commons^™

Centering Black Women In Patent History, Jessica Silbey

Faculty Scholarship

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

Sy-Stem-Ic Bias: An Exploration Of Gender And Race Representation On University Patents, Jordana Goodman

Faculty Scholarship

People of color and women are underrepresented in science, technology, engineering and math (“STEM”) fields in the United States. Through both intentional and unintentional structural barriers, universities continue to lose valuable intellectual resources by perpetuating a lack of gender, racial, and ethnic diversity as people climb the academic ladder. Identifying racial and gender disparities between university campus populations and their patent representation quantifies the qualitatively observed systemic racism and sexism plaguing STEM. Although many have written about racial and gender underrepresentation in STEM, no author has ever endeavored to simultaneously quantify the racial and gender gap at universities in the …

20 Years Of Trade Secrets Scholarship (2002-2022), Sharon Sandeen

Faculty Scholarship

No abstract provided.

Help Was Not On The Way: Intellectual Property Liability Relief In A Pandemic Era, Kim Vu-Dinh

Faculty Scholarship

On January 21, 2020, the United States recorded its first case of COVID-19. By April of that same year, numerous hospitals across the nation had exhausted entire reserves of personal protective equipment (PPE), with looming uncertainty as to when they would be replenished. As infection numbers increased exponentially, global demand for some types of PPE increased by 1000%.

Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From creating cloth masks to ventilator pistons, nonprofits and everyday citizens were able to partially …

Ms. Attribution: How Authorship Credit Contributes To The Gender Gap, Jordana Goodman

Faculty Scholarship

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis …

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.

Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …