Law Commons^™

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …

Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan

Articles

The Bayh-Dole Act of 1980 established a new default rule that allowed nonprofit organizations and small businesses to own, as a routine matter, patents on inventions resulting from research sponsored by the federal government. Although universities helped get the Bayh-Dole Act through Congress, the primary goal, as reflected in the recitals at the beginning of the new statute, was not to benefit universities but to promote the commercial development and utilization of federally funded inventions. In the years since the passage of the Bayh-Dole Act, universities seem to have lost sight of this distinction. Their behavior as patent seekers, patent …

The Central Claiming Renaissance, Andres Sawicki

Articles

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn.

The Court's eligibility cases are significant outliers compared to today's run-of-the-mill patent law because claim language plays little role in their analyses. In our modern peripheral claiming system, the claim language is the near exclusive guide to the patent's boundaries. But in its earliest days, our patent system pursued a central claiming approach, in which the inventor's actual work determined the patent's scope. The Court's …

Patent Aversion: An Empirical Study Of Patents Collateral In Bank Lending, Xuan-Thao Nguyen, Erik Hille

Articles

The most valuable assets of many companies today are patents. If patents are valuable, why do banks operating across the United States refuse to lend against patents in commercial lending to reduce their risks? Lending is the primary function of banks. Yet banks have a strong aversion to accept patents as collateral, rendering the vast number of patents as idle assets. This empirical study is the first to identify the patent aversion problem as contrary to the frequent headlines of how valuable patents are to the economy. By carefully extracting relevant patent and security interest filings data and examining the …

The Puzzle In Financing With Trademark Collateral, Xuan-Thao Nguyen, Erik Hille

Articles

If trademarks are important corporate assets, do banks and nonbanks lend against trademarks? Or do lenders accept trademark collateral merely as part of a blanket lien? Do banks and nonbanks treat trademarks differently than patents in lending, including venture lending? This first empirical study will attempt to answer these questions. We extract and analyze security interest filings in trademarks and patents against the backdrop of secured transactions law and banking regulations. Based on the data, it seems banks and nonbanks have an aversion for trademark collateral and, by practice, treat most trademarks as idle assets. We also argue that the …

A View Of Copyright From The Digital Ground, Andres Sawicki

Articles

No abstract provided.

Critical Race Ip, Anjali Vats, Deidre A. Keller

Articles

In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …

The New Separability, Lili Levi

Articles

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Actdoes not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining "function," …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.