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2014

Intellectual Property Law

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Articles 1 - 30 of 191

Full-Text Articles in Law

How Not To Apply Actavis, Michael A. Carrier Dec 2014

How Not To Apply Actavis, Michael A. Carrier

NULR Online

No abstract provided.


Toward A Patent Exhaustion Regime For Sustainable Development, 32 Berkeley J. Int'l Law. 330 (2014), Benjamin Liu Dec 2014

Toward A Patent Exhaustion Regime For Sustainable Development, 32 Berkeley J. Int'l Law. 330 (2014), Benjamin Liu

Faculty Scholarship

This Article argues that the current exhaustion doctrine, when applied to the refurbishing industry, fails to balance its mandate of promoting technological progress with the broader program of sustainable development and is therefore unsuitable for countries on the modernization path. First, what constitutes an infringing “making” remains underdetermined. Second, the evidentiary hurdle for proving legal refurbishment is too onerous for the low margin and under-resourced refurbishing industry. Finally, the all-or-nothing approach to judging infringement fails to account for the nuanced cost-benefit nexus that exists between patentees, refurbishers, and society at large and discourages private ordering. To recalibrate the balance between ...


Unpacking Patent Assertion Entities (Paes), Christopher A. Cotropia Dec 2014

Unpacking Patent Assertion Entities (Paes), Christopher A. Cotropia

Law Faculty Publications

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we ...


The Constructive Role Of Confusion In Trademark, Alfred C. Yen Dec 2014

The Constructive Role Of Confusion In Trademark, Alfred C. Yen

Boston College Law School Faculty Papers

This Article argues that consumer confusion plays a pervasive and important role in our trademark system. This argument directly challenges well-established orthodoxy. Numerous Supreme Court opinions and leading academics take the position that trademark law exists to reduce consumer confusion as much as possible. Indeed, courts generally justify aggressive creation and enforcement of trademark rights on the ground that these rights reduce consumer confusion or its economic equivalent, consumer search costs. Unfortunately, this construction of trademark law rests on a fundamental misunderstanding about how consumer confusion, the trademark system, and the operation of markets relate to one another. In particular ...


Trade Secret Fair Use, Deepa Varadarajan Dec 2014

Trade Secret Fair Use, Deepa Varadarajan

Faculty Publications By Year

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies can do this, in part, because trade secret law lacks clear limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee that uses proprietary information to create a substantially improved product or disclose public health risks.

This Article ...


Copyright, Fair Use And Author’S Rights Ii (October/November 2014), Paul Royster Nov 2014

Copyright, Fair Use And Author’S Rights Ii (October/November 2014), Paul Royster

Library Conference Presentations and Speeches

Copyright is a battlefield, and an author’s control over his/her own work can easily become collateral damage or go missing in action. Many publishers believe they have an inherent right to own the intellectual property arising from your grant-funded research and to live off the earnings of written works that you had little choice but to give them for free or pay them to publish. In this session you will learn more about U.S. Copyright Law, Author’s Rights, and protecting your Intellectual Property. Faculty members Paul Royster and Sue Gardner will speak on Copyright, Fair Use ...


Intellectual Property Treaties And Development, Dalindyebo Shabalala, Anselm Kamperman Sanders Nov 2014

Intellectual Property Treaties And Development, Dalindyebo Shabalala, Anselm Kamperman Sanders

School of Law Faculty Publications

This work responds to the increasing need in many countries to better understand linkages between intellectual property, trade rules, and economic and social development, and to find new ways of implementing intellectual property rules and optimizing their effects. It provides a comprehensive analysis of the latest legal, economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development.

This chapter traces the link between intellectual property protection, innovation, and development trough the multilateral WTO system and bilateral trade and investment treaties. In a post-TRIPS globalized world, knowledge-intensive economies encounter increasing difficulties in ...


Man Arrested On Federal Charges Of Operating Spin-Off Silk Road Website, Marc H. Greenberg Nov 2014

Man Arrested On Federal Charges Of Operating Spin-Off Silk Road Website, Marc H. Greenberg

Interviews

No abstract provided.


Ip Law Book Review, Vol. 5#1, November 2014, William T. Gallagher Nov 2014

Ip Law Book Review, Vol. 5#1, November 2014, William T. Gallagher

Intellectual Property Law

TRADEMARK PROTECTION AND TERRITORIALITY CHALLENGES IN A GLOBAL ECONOMY, edited by Irene Calboli and Edward Lee. Reviewed by Lisa P. Ramsey, University of San Diego School of Law.

INTERNATIONAL TRADE IN INDIGENOUS CULTURAL HERITAGE: LEGAL AND POLICY ISSUES, edited by Christoph B. Graber, Karolina Kuprecht, and Jessica C. Lai. Reviewed by Laura Nader, The University of California, Berkeley.


Proportion Of Open Access Papers Published In Peer-Reviewed Journals At The European And World Levels—1996–2013, Éric Archambault, Didier Amyot, Philippe Deschamps, Aurore Nicol, Françoise Provencher, Lise Rebout, Guillaume Roberge Oct 2014

Proportion Of Open Access Papers Published In Peer-Reviewed Journals At The European And World Levels—1996–2013, Éric Archambault, Didier Amyot, Philippe Deschamps, Aurore Nicol, Françoise Provencher, Lise Rebout, Guillaume Roberge

Copyright, Fair Use, Scholarly Communication, etc.

This study report assesses the free availability of scholarly publications during the 1996 to 2013 period. It is the largest scale measurement of open access availability performed to date: a sample of one-quarter of a million records was used to study the historical evolution of open access (OA) between 1996 and 2013 and a larger, one million records sample was used to perform an in-depth assessment of the proportion and scientific impact of OA between 2008 and 2013 in different types of OA, for different scientific fields of knowledge, and for 44 countries, the EU28, ERA, and the world.

Compared ...


Teece's Competing Through Innovation, Herbert J. Hovenkamp Oct 2014

Teece's Competing Through Innovation, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This essay reviews David J. Teece's book, Competing Through Innovation: Technological Strategies and Antitrust Policies (2013).


11th Circuit Court Of Appeals: Cambridge Univ. Press V. Patton, Opinion (2014), 11th Circuit Court Of Appeals Oct 2014

11th Circuit Court Of Appeals: Cambridge Univ. Press V. Patton, Opinion (2014), 11th Circuit Court Of Appeals

Georgia State University Copyright Lawsuit

No abstract provided.


Patent Imperialism, Bernard Chao Oct 2014

Patent Imperialism, Bernard Chao

NULR Online

No abstract provided.


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2014

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Climate Change, Technology Transfer And Intellectual Property: Options For Action At The Unfccc, Dalindyebo Shabalala Oct 2014

Climate Change, Technology Transfer And Intellectual Property: Options For Action At The Unfccc, Dalindyebo Shabalala

School of Law Faculty Publications

In his dissertation, the author examines the issue of whether intellectual property poses a barrier to technology transfer to address climate change and if so, what policymakers should do at the multilateral level. The book refocuses the question away from empirical approaches toward the key question of the legal capacity of developing countries to prospectively restructure their economies to access technologies and move up the technology value chain. It concludes with a set of recommendations for action at the United Nations Framework Convention on Climate Change.

The author defended his dissertation Oct. 15, 2014, at Maastricht University in the Netherlands ...


Copyright, Fair Use, And Author Rights, Sue Ann Gardner Oct 2014

Copyright, Fair Use, And Author Rights, Sue Ann Gardner

Library Conference Presentations and Speeches

From the promotional flyer for this talk:

Copyright is a battlefield, and an author's control over his/her own work can easily become collateral damage or go missing in action. Many publishers believe they have an inherent right to own the intellectual property arising from your grant-funded research and to live off the earnings of written works that you had little choice but to give them for free or pay them to publish.

In this session, you will learn more about U.S. Copyright Law, authors' rights, fair use, and protecting your intellectual property. You will learn how to ...


Non-Price Competition In “Substitute" Drugs: The Ftc's Blind Spot, Gregory Dolin Oct 2014

Non-Price Competition In “Substitute" Drugs: The Ftc's Blind Spot, Gregory Dolin

All Faculty Scholarship

As the recent case of United States v. Lundbeck illustrates, the Federal Trade Commission’s lack of knowledge in medical and pharmacological sciences affects its evaluation of transactions between medical and pharmaceutical companies that involve transfers of rights to manufacture or sell drugs, causing the agency to object to such transactions without solid basis for doing so. This article argues that in order to properly define a pharmaceutical market, one must not just consider the condition that competing drugs are meant to treat, but also take into account whether there are “off-label” drugs that are used to treat a relevant ...


Improving Patent Quality With Applicant Incentives, Stephen Yelderman Oct 2014

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive ...


Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan Oct 2014

Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan

Faculty Scholarship

Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. In one – contributory infringement – courts struggle with the tension between preserving legitimate, non-infringing uses of technologies, on the one hand, and minimizing infringement, on the other. In the other – direct infringement – liability turns on perceived wrongdoing by intermediaries whose own behavior increases the risk of consumer confusion. This second type of liability boasts neither a clear doctrinal framework nor a coherent normative vision. Most troublingly, the scant case law has paid little attention to issues at the core of secondary liability analysis – namely ...


Inventing Around Copyright, Dan L. Burk Sep 2014

Inventing Around Copyright, Dan L. Burk

NULR Online

No abstract provided.


The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard Sep 2014

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

All Faculty Scholarship

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argues that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality ...


Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole Sep 2014

Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.


Authors Alliance, Laura Burtle Aug 2014

Authors Alliance, Laura Burtle

Selections from the University Library Blog

No abstract provided.


Public Good Economics And Standard Essential Patents, Christopher S. Yoo Aug 2014

Public Good Economics And Standard Essential Patents, Christopher S. Yoo

Faculty Scholarship at Penn Law

Standard essential patents have emerged as a major focus in both the public policy and academic arenas. The primary concern is that once a patented technology has been incorporated into a standard, the standard can effectively insulate it from competition from substitute technologies. To guard against the appropriation of quasi-rents that are the product of the standard setting process rather than the innovation itself, standard setting organizations (SSOs) require patentholders to disclose their relevant intellectual property before the standard has been adopted and to commit to license those rights on terms that are fair, reasonable, and non-discriminatory (FRAND).

To date ...


Goodbye To Berlin –Where Is Oa Heading?, Claudio Aspesi Aug 2014

Goodbye To Berlin –Where Is Oa Heading?, Claudio Aspesi

Copyright, Fair Use, Scholarly Communication, etc.

The Facts: Perhaps 10 to 20% of all peer-reviewed articles are published in OA. Almost 10,000 journals listed in the DOAJ.Reed Elsevier and Wiley’s share prices are doing well. Subscription publishing seems in great health.

What is Going On? Full Gold OA is a major threat to the economics of subscription publishers...with significant possible repercussions on the company’s overall performance.

But OA Implementation is Failing: Definition remains vague, probably because objectives are vague. "Europeans are from Mars, Americans are from Venus”. Hybrid model is effectively impossible to monitor. Expectations that OA will address the serial ...


Brief For Amicus Curiae Law Professors And Scholars In Support Of Apellee, In Authors Guild V. Google, Inc., Michael W. Carroll, Brandon Butler, Meredith Jacob Jul 2014

Brief For Amicus Curiae Law Professors And Scholars In Support Of Apellee, In Authors Guild V. Google, Inc., Michael W. Carroll, Brandon Butler, Meredith Jacob

PIJIP Research Paper Series

No abstract provided.


An Overview Of The International Treatment Of Exceptions, Eric Schwartz Jul 2014

An Overview Of The International Treatment Of Exceptions, Eric Schwartz

PIJIP Research Paper Series

This article is intended as a very brief overview and history of the international treatment of “fair use” or its equivalent — that is, a general summary of the treaty obligations and national law exceptions (in statute or by common law) to the exclusive rights of authors and owners of copyrights.


Myriad Stands Alone, Jacob S. Sherkow, Christopher T. Scott Jul 2014

Myriad Stands Alone, Jacob S. Sherkow, Christopher T. Scott

Articles & Chapters

Myriad took no prisoners on its way to the top of the molecular diagnostics field. That strategy is unlikely to endure.

Myriad Genetics began in 1991 as a small University of Utah startup interested in the then-novel arena of diagnostic genetic testing. After winning a highly publicized race to sequence the BRCA1 and BRCA2 breast cancer genes, the company obtained patents on the gene sequences and methods of using them to determine cancer risk. The patents were broad and interlocking, covering BRCA genomic DNA, cDNA, methods of diagnosis and systems detecting mutations. Myriad also filed for diagnostic 'toolbox' patents, including ...


Multipolarity, Intellectual Property And The Internationalization Of Public Health Law, Sam F. Halabi Jul 2014

Multipolarity, Intellectual Property And The Internationalization Of Public Health Law, Sam F. Halabi

Faculty Publications

This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual ...


The Historical Significance, Modernization, And Future Of The Video Privacy Protection Act, Erika Williams Jun 2014

The Historical Significance, Modernization, And Future Of The Video Privacy Protection Act, Erika Williams

GGU Law Review Blog

In the twenty first century, we are accustomed to the privacy protections that prohibit video rental service companies from releasing our consumer service history to other sources without first obtaining our written, signed consent. However, most consumers likely do not know the historical significance of why we came to appreciate these privacy protections or what the exact terms of these privacy protections are.