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2010

Intellectual Property Law

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Articles 1 - 30 of 174

Full-Text Articles in Law

Data Sharing, Latency Variables And The Science Commons, Jorge Contreras Nov 2012

Data Sharing, Latency Variables And The Science Commons, Jorge Contreras

Jorge L. Contreras

Over the past decade, the rapidly decreasing cost of computer storage and the increasing prevalence of high-speed Internet connections have fundamentally altered the way in which scientific research is conducted. Led by scientists in disciplines such as genomics, the rapid sharing of data sets and cross-institutional collaboration promise to increase scientific efficiency and output dramatically. As a result, an increasing number of public “commons” of scientific data are being created: aggregations intended to be used and accessed by researchers worldwide. Yet, the sharing of scientific data presents legal, ethical and practical challenges that must be overcome before such science commons ...


The Google Book Settlement And The Fair Use Counterfactual Sep 2012

The Google Book Settlement And The Fair Use Counterfactual

Matthew Sag

The sprawling Google Book litigation began as a dispute between the search engine colossus and a variety of authors and publishers over the legality of book digitization for the purpose of indexing paper collections and making them searchable. However, through the metamorphic power of class-action litigation, a dispute over mere indexing and search has been transformed into a comprehensive agreement over the future of the book as a digital commodity. Understanding this transformation and its implications is the central ambition of this Article. It does so by comparing the pending (now amended) Google Book settlement to the most likely outcome ...


Intellectual Property Lawcards 2010-2011, Taiwo Oriola Dec 2010

Intellectual Property Lawcards 2010-2011, Taiwo Oriola

Taiwo Oriola

No abstract provided.


The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena Kouvabina Dec 2010

The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena Kouvabina

Elena K Kouvabina

Employee nonsolicitation clauses continue to be a common feature of employment agreements in California. While Section 16600 of the California Business and Professions Code prohibits contractual restraints on the practice of a lawful profession, trade or business, in 1985, the California Court of Appeal held that employee nonsolicitation clauses do not violate Section 16600 because they do not significantly affect employees’ ability to engage in a lawful profession, trade or business. In a recent decision, however, the California Supreme Court pronounced that Section 16600 is violated even if a covenant does not completely preclude one from engaging in a lawful ...


The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena K. Kouvabina Dec 2010

The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena K. Kouvabina

Elena K Kouvabina

Employee nonsolicitation clauses continue to be a common feature of employment agreements in California. While Section 16600 of the California Business and Professions Code prohibits contractual restraints on the practice of a lawful profession, trade or business, in 1985, the California Court of Appeal held that employee nonsolicitation clauses do not violate Section 16600 because they do not significantly affect employees’ ability to engage in a lawful profession, trade or business. In a recent decision, however, the California Supreme Court pronounced that Section 16600 is violated even if a covenant does not completely preclude one from engaging in a lawful ...


The Wrong Tool For The Job: The Ip Problem With Noncompetition Agreements, Viva R. Moffat Dec 2010

The Wrong Tool For The Job: The Ip Problem With Noncompetition Agreements, Viva R. Moffat

William & Mary Law Review

This Article argues that employee noncompetition agreements ought to be unenforceable. It begins by recognizing that there is momentum for change in the law of noncompetes: a number of states and the American Law Institute (ALI) are in the process of reconsidering noncompete doctrine, and recent empirical studies provide evidence as to the mostly negative effects of the agreements. Existing critiques have focused on the problematic nature of noncompetes within the employment relationship. This Article synthesizes those critiques, adding support from empirical studies, and then examines noncompetes from a new perspective.

Commentators have neither recognized nor evaluated the role noncompetes ...


How A Changing Nation Is Fueling The Rise Of Trade Secret Litigation, David Almeling Nov 2010

How A Changing Nation Is Fueling The Rise Of Trade Secret Litigation, David Almeling

David S. Almeling

Reports of pilfered trade secrets have grown increasingly common, and as recent studies demonstrate, trade secret litigation is on the rise. A 2010 study of the federal courts shows that trade secret litigation has grown exponentially while litigation in general has decreased. And a 2011 study of state courts shows that trade secret litigation is increasing at a faster rate than the rate of litigation in general. This essay asks: Why? Why is trade secret litigation more prevalent than ever? This essay posits — for the first time — explanations for the fact that trade secrets are increasingly important to the American ...


Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher Holman Nov 2010

Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher Holman

Christopher M Holman

The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic ...


Neutrality And Diversity In The Internet Ecosystem, Andrea Renda Nov 2010

Neutrality And Diversity In The Internet Ecosystem, Andrea Renda

Andrea Renda

The public policy approach to the Internet has become more and more complex as several markets – including fixed and mobile communications, media and content, IT – converge into one single Internet ecosystem. As in all ecosystems, zones and domains depend on each other, and there is no possibility of touching one layer without affecting all others. This paper reflects on the economics of the Internet and emerging business models, and comments on the current debates in each of the layers of modern all-IP architectures, from the unbundling of network elements to net neutrality and the emerging discussion on search neutrality. The ...


Virtual Justice, Greg Lastowka Nov 2010

Virtual Justice, Greg Lastowka

Greg Lastowka

In Virtual Justice, Greg Lastowka illustrates the real legal dilemmas posed by virtual worlds. Presenting the most recent lawsuits and controversies, he explains how governments are responding to the chaos on the cyberspace frontier. After an engaging overview of the history and business models of today's virtual worlds, he explores how laws of property, jurisdiction, crime, and copyright are being adapted to pave the path of virtual law.


Real Copyright Reform, Jessica Litman Oct 2010

Real Copyright Reform, Jessica Litman

Jessica Litman

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current ...


Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer Oct 2010

Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on the ...


Cybersquatting At The Intersection Of Internet Domain Names And Trademark Law, Steven Wright Oct 2010

Cybersquatting At The Intersection Of Internet Domain Names And Trademark Law, Steven Wright

Steven Wright

This is a tutorial about the basic elements of domain name system and trademark law focussing on the interactions between them and specifically on the concept of cybersquatting. The tutorial reviews the structure of the domain name space and it’s associated protocols as well as the legal context for trademarks and the recent advances for adjudication of disputes related to cybersquatting. Some potential impacts of recent extensions proposed for the gTLD domain name space are also considered.


Social Semiotics In The Fair Use Analysis, H Brian Holland Oct 2010

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words

3,809 footnotes (Bluebook formatted)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended ...


Social Semiotics In The Fair Use Analysis, H Brian Holland Oct 2010

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so ...


User-Generated Content And Music File-Sharing: A Look At Some Of The More Interesting Aspects Of Bill C-32, Daniel Gervais Oct 2010

User-Generated Content And Music File-Sharing: A Look At Some Of The More Interesting Aspects Of Bill C-32, Daniel Gervais

Daniel J Gervais

This chapter is not intended as an update, but rather as an addendum to my chapter in Professor Geist’s previous book on Canadian copy- right reform. In that chapter, I suggested that the upcoming reform should focus on excludability of Internet-based uses, that is the exercise of exclusive copyright to prevent online uses of copyright material. I also suggested that this excludability was technologically problematic. Users empowered by social norms and ever-changing technological tools going well beyond peer-to-peer software, and even relying on the old USENET, circumvent technological protection measures (TPMs), and ultimately access millions of MP3s. Proxies and ...


Transformation In Property And Copyright, Christopher Newman Oct 2010

Transformation In Property And Copyright, Christopher Newman

Christopher M Newman

Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian ...


Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon Oct 2010

Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon

Jon M. Garon

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.
Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect these interests ...


Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack Sep 2010

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New ...


The Theorem Of The Social Value Of Inventions And The Happiness Machine Patent Syndrome, Nuno Carvalho Sep 2010

The Theorem Of The Social Value Of Inventions And The Happiness Machine Patent Syndrome, Nuno Carvalho

Nuno P Carvalho

The higher the social value of inventions the lower is the proportion of revenue that inventors are able to capture from their exploitation. This formulation is a hypothesis that stems from the observation of facts: most patents covering highly valuable inventions are subject to attacks that are difficult to explain. Those attacks have social causes, such as the monopoly stigma, the urge for penance and the idea of just price. Together they form the happiness machine patent syndrome. There is no evidence making a definitive case for the theorem above, and yet observation of the difficulties that have insistently haunted ...


An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter Sep 2010

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The model suggests, among other things, that the conditions that trigger a finding of inequitable conduct, both in the doctrine’s current form and in various proposed reformulations, are at best only a rough proxy for the conditions ...


An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas Cotter Sep 2010

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The model suggests, among other things, that the conditions that trigger a finding of inequitable conduct, both in the doctrine’s current form and in various proposed reformulations, are at best only a rough proxy for the conditions ...


Reverse Settlements As Patent Invalidity Signals, Gregory Dolin Sep 2010

Reverse Settlements As Patent Invalidity Signals, Gregory Dolin

Gregory Dolin

Over the last decade a new type of settlements, commonly referred to as “reversed payment settlements” or simply “reverse settlements,” emerged in litigation over patents covering pharmaceutical products. What differentiates these new settlements from their traditional counterparts is that whereas traditionally, the alleged trespasser on someone else’s rights pays the rights-holder to settle the litigation, in these new settlements it is the rights holder that pays the alleged trespasser. These settlements are a direct consequence of the various incentives provided by the Hatch-Waxman Act – an Act designed to increase competition between brand name and generic manufactures of pharmaceutical products ...


An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter Sep 2010

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The model suggests, among other things, that the conditions that trigger a finding of inequitable conduct, both in the doctrine’s current form and in various proposed reformulations, are at best only a rough proxy for the conditions ...


Transborder Licensing: New Frontier For Job Creation, Andrea Johnson Sep 2010

Transborder Licensing: New Frontier For Job Creation, Andrea Johnson

Andrea L Johnson

Abstract: TRANSBORDER LICENSING: NEW FRONTIER FOR JOB CREATION http://ssrn.com/abstract=1675285 (September, 11 2010). Available at SSRN: http://ssrn.com/abstract=1675286 By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article makes the case that the best opportunities for creating new jobs in the United States will come from transborder licensing. Transborder licensing involves the creation and disposition of intellectual property (IP), such as copyrights, patents, trademarks, and trade secrets, across geographical boundaries. Licensing is a contractual agreement in which the owner of ...


Unwinding A Case: Issues That May Arise Regarding Settlement Agreements In Patent Infringement Litigation, Jayme Partridge, Jayne Piana Sep 2010

Unwinding A Case: Issues That May Arise Regarding Settlement Agreements In Patent Infringement Litigation, Jayme Partridge, Jayne Piana

Jayme Partridge

In a patent infringement case, district court orders such as an unfavorable claim construction or a partial summary judgment of invalidity may have a devastating effect not only on present litigation but on any subsequent litigation involving the same patents. Are these orders preclusive in subsequent litigation? For example, is the patentee precluded from asserting a patent where there has been a partial summary judgment finding of invalidity in prior litigation? What can the patentee do to mitigate the effect of an unfavorable ruling on subsequent litigation? This article reviews these issues in detail, including the different standards applied by ...


Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay Sep 2010

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover ...


Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis Karjala Sep 2010

Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis Karjala

Dennis S Karjala

In the 1970=s, paying virtually no attention to the fundamental distinction between patent and copyright subject matter, Congress decided to protect computer programs as a Aliterary work@ under copyright law. As a result, a work of technology for the first time was consciously placed under the protective umbrella of a statute designed for art, music, and literature. While the vulnerability of computer program code to cheap and easy verbatim copying supplied a policy basis for Aanti-copy@ protection of code, courts often analogized these congressionally anointed Aliterary works@ to broadly protected novels and plays rather than thinly protected technical specifications ...


An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference With Former Employee Non-Disclosure Agreements And The Threat Of Disqualification, Maura Strassberg Sep 2010

An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference With Former Employee Non-Disclosure Agreements And The Threat Of Disqualification, Maura Strassberg

Maura I Strassberg

ABSTRACT The Model Rule 4.4 prohibition on the use of methods of obtaining evidence that violate the rights of third parties can be read to prohibit the informal questioning of a former employee with a non-disclosure agreement to advance a proposed or pending lawsuit, as this may constitute the tort of intentional interference with contract. The use of non-disclosure agreements is proliferating and, although actual tort liability in this context has hardly ever been litigated, it is easy to strategically use this tort to allege an ethical violation that can be the basis of a disqualification motion. The threat ...


An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas Cotter Sep 2010

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The model suggests, among other things, that the conditions that trigger a finding of inequitable conduct, both in the doctrine’s current form and in various proposed reformulations, are at best only a rough proxy for the conditions ...