Law Commons^™

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 Essay 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 …

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 …

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 …

Orphan Business Models: Toward A New Form Of Intellectual Property, Michael Abramowicz

Michael Abramowicz

Drug companies will often have insufficient incentives to undertake clinical testing on drugs ineligible for patent protection. The Orphan Drug Act combats this by providing a limited term of exclusivity to companies willing to shepherd a drug through FDA approval. This is a form of intellectual property protection that might be applied in many contexts beyond drugs, but the literature has not previously addressed the design and potential scope of such protection. Sometimes, no company will pursue a risky business model even when experimentation with that business model would increase expected social welfare, because other companies would free-ride on information …

The Inducement Standard Of Patentability, Michael Abramowicz, John F. Duffy

Michael Abramowicz

In Graham v. John Deere, the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents only to “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that this inducement standard, largely ignored in practice, should serve as the doctrinal lodestar. Such an approach would provide a solid economic foundation for the patentability standard and would align patent law with the many other fields of regulatory law that currently apply economic analysis in determining the scope and content of regulation. The Article also offers …

Non-Obviousness In Patent Law: Impact Of New Scientific Discoveries On In Re Kubin, Ryan C. Smith

Ryan C Smith

The Federal Circuit made a recent controversial decision in In Re Kubin in applying the KSR v. Teleflex obviousness criteria to the field of biotechnology. As the legal world contemplated the implications of KSR on the field of biotechnology, a new scientific discovery was made which addresses the fundamental logic of an element of Kubin. The impact of the new scientific discovery on In Re Kubin suggests (a) Kubin should be limited to its facts, and (b) the scope of subject matter in the non-obvious “obvious to try” category should be significantly expanded, enabling greater patentability on new biotechnology inventions …

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is "real" to them. The …

Global Patenting And Its Effect On The Optimal Patent Term In The United States, Wesley D. Markham

Wesley D Markham

Patent globalization has arrived. Procedurally, the Patent Cooperation Treaty (PCT) makes it easy for firms to seek patent protection in many countries around the world. Substantively, the TRIPS Agreement has upped the level of patent protection available in these countries. One critically important issue is how patent law in the United States should respond to the increased globalization of the patent system. Specifically, should we reduce the patent term in the United States to compensate for the enhanced potential for patent exclusivity outside the United States? In this article, I develop a new metric which I call the “global patent …

Why Intellectual Property Rights In Traditional Knowledge Cannot Contribute To Sustainable Development, Dennis S. Karjala

Dennis S Karjala

This paper makes a simple point: If sustainability (however defined) is the goal, intellectual property rights in traditional knowledge do not move us toward the achievement of that goal. The reason is that the only social policy justification for recognizing intellectual property rights at all is that they supposedly serve as an incentive to create socially desirable works of authorship and inventions. They are not and should serve as a reward for past achievements. In other words, outside of their usual incentive function of promoting new technology, intellectual property rights in traditional knowledge have no role to play in the …

Running The Gamut From A To B: Federal Trademark And False Advertising Law, Rebecca Tushnet

Rebecca Tushnet

The Lanham Act bars both trademark infringement and false advertising, in nearly identical and often overlapping language. In some circumstances, courts have interpreted the two provisions in the same way, but in other areas there has been significant doctrinal divergence, often to the detriment of the law. This Article argues that each branch of the Lanham Act has important lessons to offer the other. Courts should rationalize their treatment of implied claims, whether of sponsorship or of other facts; they should impose a materiality requirement, such that the only unlawful claims are those that actually matter to consumers, to trademark …

What’S Privacy Got To Do, Got To Do With It: Why Information Should Drop Privacy And Seek Legal Love On Its Own Terms, Christopher E. Paxton

Christopher E Paxton

My paper argues that because the privacy interests at stake are so varied and so difficult to pin down, privacy law in the United States should shift away from privacy qua privacy and focus on the protection of information by adopting something akin to the European Union’s Data Protection and Database Directives.

Interpretation And The Internet, Cameron J. Hutchison

Cameron J Hutchison

Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Matthew J. Wilson

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

Pulling On The Threads Of “Functional” Claiming Jurisprudence, Michael S. Garrabrants

Michael S Garrabrants

In the world we inhabit, no significant difference would be attributed to a “detector of a signal” versus a “means for detecting a signal” or to a “generator of a configuration” versus a “configuration generator“. However, in patent claim construction, the differences can be profound. The first approach in each case allows a broadly-enforceable construction, while the latter results in a cramped claim construction that may not properly reward a patentee for his inventive contribution, and result in a finding of claim indefiniteness under § 112 ¶ 2. The latter result is from application of the combination of § 112 …

"Censorship In The Video Game Industry: Government Intervention Or Parental Controls?", Richard J. Hunter Jr., Hector R. Lozada, Ann Mayo

Richard J Hunter Jr.

The article is a comprehensive review of the constitutional issues surrounding legislation which regulates the video game industry in the context of the Illinois Sexually Explicit Video Game Law (SEVGL). The article reviews the process of the Entertainment Software Rating Board (ESRB), the application of strict scrutiny analysis by the Court of Appeals, the discussion relating to the constitutionality of the SEVGL, and revisits the important precedents found in Ginsberg and Miller. The article offers a suggestion for future legislative efforts in the area of regulation of this important industry.

Property's End: Why Competition Policy Should Limit The Right Of Publicity, Steven Semeraro

Steven Semeraro

The right of publicity is an intellectual property right that empowers celebrities to prohibit the unauthorized use of their names, images, and identities. Over the past two decades, academic commentators have presented powerful critiques of this right. Yet, legislatures and courts have turned a deaf ear, continuing to expand publicity rights. This article has two goals. First, it explains why the seemingly persuasive critique of the right of publicity has failed to influence law makers. The right’s critics claim that publicity cannot be property because the arguments used to justify actual property simply do not apply to publicity. When one …

When Too Much Is Enough: Addressing The Rising Number Of Open Source Software Licenses And Their Effect On Innovation, Natalie G. Banach

Natalie G Banach

This article addresses a growing problem in the open source software industry, namely license proliferation. The open source software movement is revolutionary in that its participants rely on a creative licensing scheme to foster innovation in the face of increasing restrictions in copyright law. Nevertheless, the impressive strides the open source software community has taken is now threatened by the growing number of complex and incompatible licenses. This article proposes that the solution lies in the application of a framework that every software programmer and legal practitioner can use to better understand the licenses and ultimately propel innovation in the …

Separation Of Ownership And The Authorization To Use Personal Computers: Unintended Effects Of Eu And U.S. Law On It Security, Lukas Feiler

Lukas Feiler

It used to be that owners of personal computers typically had full and exclusive authorization to use their computers. This was primarily due to the open architecture introduced with the IBM Personal Computer in the 1980s and proliferated in the 1990s. Recent developments bear evidence of an increasing disconnection between the concept of ownership and that of authorization to use a personal computer (including mobile devices such as notebooks, sub-notebooks, cell phones, smartphones, and PDAs): interference with the closed architecture employed by Apple’s iPhone is claimed to constitute a violation under 17 U.S.C. § 1201; the EULA for Windows 7 …

How Should China Respond To Online Piracy Of Sports Telecasts, Seagull Haiyan Song Dr.

Seagull Haiyan Song

No abstract provided.

Liability For Trademark Infringement For Internet Service Providers, Katja G. Weckstrom

Katja G Weckstrom

ABSTRACT Liability for Trademark Infringement for Internet Service Providers Katja Weckström*

At the wake of the millennium and the rise of the internet, legislative action was taken to shelter internet service providers (ISPs) from various forms of legal action. In the turmoil of chartering new and unregulated territory, such a safe harbor was deemed necessary to protect up-starting businesses. Today, these internet actors e.g. Google, Amazon and eBay have grown strong and powerful. Thus, intellectual property holders have started to challenge this privilege in court. Increasingly, owners of famous marks seek liability and damages for direct and indirect trademark infringement …

Essence Of Copyright By Raheel R Daureeawo Llm, Raheel R. Daureeawo

Raheel R Daureeawo

Copyright is and has always been about policy. And what I intend to discuss in this paper is a list of topics which have always been center of debate in copyright courts. Although each topic is a book in itself, but my attempt here is to consolidate this list. The goal of the law of copyright has always been to promote scientific, literary and artistic creativity and protect as well as limit these rights in order to prevent monopolies. In order to understand the present and future of copyright it is imperative to know its past. There is a debate …

Technology & Copyright Law-The Nfl’S Ability To Protect Its Copyrights In Game Broadcasts, Sonali P. Chitre

Sonali P Chitre

Copyright is critical to protecting sports broadcasts and new technology has evolved to disseminate these broadcasts to the many people that enjoy professional sports. Because of new digital rights in the copyright statute, the NFL has very strong copyright protections that cover Internet, satellite, television, and radio licensing of its broadcasts. This article analyzes the NFL’s “blackout” rule in the context of growing technology and increased copyright protection.

In NFL v. McBee & Bruno’s, Inc., the Eighth Circuit held that defendant sports bar’s display of “blacked-out” games did not fall under an exemption regarding common use since satellite dishes were …

From Open Source Software To Open Patenting: What’S New In The Realm Of Openness?, Mariateresa Maggiolino, Maria Lillà Montagnani

mariateresa maggiolino

This paper analyses the emerging Open Patenting (OP) phenomenon within the boundaries of the Open Source (OS), and against the backdrop of the Open Source Software (OSS). We argues that OP like OSS can be a flexible legal tool capable of shaping the existing IP rules thereby facing some of the limits that the traditional paradigms used for explaining innovation and managing IPRs bear. Further, we maintain that IP differently from OSS is still a kaleidoscopic phenomenon whose boundaries are unsettled and very much affected by the industry to which the subject matter (or innovation) belongs. Part I discusses the …

A Comparative Copyright Analysis Of Isp Liability In China Versus The United States And Europe, Seagull Haiyan Song Dr.

Seagull Haiyan Song

The accompany article will be the first to examine the secondary liability theories of internet service provider (ISP) in the U.S., Europe and China. By conducting a comparative study of the legislation and case law developed in the aforesaid regions, the article addresses problems and uncertainty under the existing PRC copyright law as to the liability of ISPs, and then proposes a number of recommendations to be considered in its future legislative reform.

Data Protection: The Challenges Facing Social Networking, Rebecca Wong Dr

Dr Rebecca Wong

The popularity of social networking sites has increased dramatically over the past decade. A recent report indicated that thirty-eight percent of online users have a social networking profile. Many of these social networking site users (SNS users) post or provide personal information over the internet every day. According to the latest OfCom study, the average adult SNS user has profiles on 1.6 sites and most check their profiles at least once every other day. However, the recent rise in social networking activity has opened the door to the misuse and abuse of personal information through identity theft, cyber stalking, and …

You Infringed My Patent, Now Wait Until I Sue You: The Federal Circuit’S Decision In Avocent Huntsville Corp. V. Aten International Co., Marta Vanegas

Marta R. Vanegas LL.M.

The Federal Circuit recently held that it lacked personal jurisdiction over a foreign defendant, because neither the patentee’s sales within the forum state, nor their patent enforcement letters constituted sufficient contacts for personal jurisdiction. This Note argues that the Federal Circuit erroneously held that a patentee’s sales in the forum state are irrelevant to specific personal jurisdiction. The Note surveys the legal background of personal jurisdiction in declaratory judgment actions, particularly in the patent context. The Note then argues that the Federal Circuit's recent line of cases incorrectly held that a patentee’s sales of the patented product within the forum …

Rights, Privileges And Access To Information, Alina Ng

Alina Ng

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users …

The Not So Great Wall Of China: Intellectual Property Enforcement Issues March On In The People’S Republic, Anna Liu

Anna Liu

No abstract provided.

Masur - Isp Licensing Article, Steven R. Masur

vanessa m bonn

For years now, people have downloaded music over the internet without paying rights holders, and no industry solution has been universally adopted.

Amid a cacophony of discussion about new business models, DRM, three strikes you’re out laws and other solutions, one idea continues to gain support; ISP licensing, or charging people a fee on their internet service or mobile bill to be paid to rights holders for music downloaded over the internet. What is not discussed is exactly how this would work.

Steven Masur, outlines the law on ISP Licensing in the United States in his article, "Masur - The …

If It Ain't Broke.... Copyright's Fixation Requirement And Cultural Citizenship, Larisa Mann

Larisa Mann

Copyright subsists in creative works that are "fixed in any tangible medium of expression," usually understood as making fixation a prerequisite for protection. However, some argue that denying copyright to unfixed works unfairly denies protection to certain classes of artists or works , and that fairness, or concern for those classes of artists or genres, requires that they receive the benefit of copyright ownership for those unfixed works. These arguments generally assume the benefits of copyright protection to the artist, and often by unexamined extension to society. However, copyright ownership has social costs as well as social benefits. This paper …