Law Commons^™

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 …

Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec

Faculty Publications

Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …

The Standard For Awarding Attorney Fees Under 35 U.S.C. Section 285 To Prevailing Parties In Patent Litigation - Octane Fitness, Llc V. Icon Health & Fitness, Inc. And Highmark, Inc. V. Allcare Health Management Systems, Dennis D. Crouch, Jafon Fearson

Faculty Publications

The Supreme Court granted certiorari in two patent infringement cases that both concern shifting of attorney fees under the “exceptional case” standard of 35 U.S.C. § 285. The Federal Circuit has traditionally been resistant to fee shifting awards—especially in cases where an accused infringer is the prevailing party. In Octane Fitness, petitioner asks the Court to lower the standard for proving an exceptional case. In Highmark, petitioner asks for deference to lower court exceptional case findings.

In Tort Pursuit Of Mass Media: Big Tobacco, Big Banks, And Their Big Secrets, Richard J. Peltz-Steele, Eric J. Booth

Faculty Publications

This article examines potential civil liability under the multistate norms of tort and closely related areas in the common law of the United States for the mass media re-publisher of leaked corporate secrets. The examination employs two fact patterns derived from real cases: one, contemporary, an international bank's grievance, never resolved on the merits in court, against the online publisher WikiLeaks; and second, conventional, a tobacco manufacturer's grievance, feared but never filed, against the television newsmagazine 60 Minutes. The study assumes jurisdiction arguendo and examines liability theories in tortious interference; unfair-competition law; and conversion, trade-secret appropriation, and related theories of …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Intent In Fair Use, Eva E. Subotnik

Faculty Publications

This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would serve copyright’s utilitarian …

Constitutional Obstacles? Reconsidering Copyright Protection For Pre-1972 Sound Recordings, Eva E. Subotnik, June M. Besek

Faculty Publications

(Excerpt)

The typical complaint about intellectual property laws is that they are sluggish in responding to technological change. An unfolding question in the contemporary era, however, is the degree to which the threat of constitutional challenge will lead Congress to further adhere to the status quo. In the wake of the patent law overhaul several years ago, for example, the wisdom and scope of those amendments were widely debated, but concern about their constitutional soundness was also expressed in some quarters. Likewise, the latter concern is in play with respect to a proposed amendment of the law that applies to …

Dilution At The Patent And Trademark Office, Jeremy N. Sheff

Faculty Publications

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …

A Eulogy For The Eula, Miriam A. Cherry

Faculty Publications

(Excerpt)

Rakoff shook his brightly dyed red hair as he shivered alongside the others waiting for the bullet train. It was a miserably cold morning, but Rakoff's fellow passengers didn't seem to mind. Most of those standing on the platform were taking their spare moments to work in the global workspace. It looked like they were talking to themselves, typing on invisible keyboards, or blinking, but in fact they were working, completing crowdsourcing tasks. Other waiting passengers were interacting with business contacts by projecting their avatars out into the virtuality. It was cold, but there was not long to wait …

Informal–Formal Sector Interactions In Automotive Engineering, Kampala, Dick Kawooya

Faculty Publications

This chapter provides findings from a Ugandan case study that examined innovation transfers between informal-sector automotive artisans and formally employed researchers at Makerere University’s College of Engineering, Design, Art and Technology (CEDAT). Th e primary site studied was CEDAT’s Gatsby Garage, an automotive workshop where it was found that the informal-sector artisans were central to innovative processes but were at the same time driven more by sharing impulses than by concern for the intellectual property (IP) implications of their work. Based on these findings, it is argued that Ugandan policy-makers need to seek policy tools to support innovation transfers between …