Intellectual Property Law Commons^™

Regulatory Competitive Shelters, Yaniv Heled

Yaniv Heled

This Article identifies an array of seemingly disparate federal exclusivity regimes as belonging to an increasingly prevalent and relatively new class of highly valuable government benefits, which it names “regulatory competitive shelters” (RCSs). It characterizes RCSs and distinguishes them from other, more traditional kinds of government-instituted properties. The Article then proceeds to describe a particular brand of RCSs established in federal statutory frameworks whose aim—much like patents—is to create incentives for technological innovation. Identifying several common motifs of such RCS regimes, the Article offers a taxonomy of these RCSs and describes the mechanisms by which RCSs instituted under such regimes …

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Déjà Vu All Over Again: Questions And A Few Suggestions On How The Fcc Can Lawfully Regulate Internet Access, Rob Frieden

Rob Frieden

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject …

When Nominal Is Reasonable: Damages For The Unpracticed Patent, Oskar Liivak

Oskar Liivak

To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, …

A Federal Information Quality Act Challenge To The White House “Patent Troll” Report, Ron D. Katznelson

Ron D. Katznelson

Government-disseminated information is unlike that of private parties or non-government entities’ information on the internet or in academic journals, with varying degrees of accuracy and reliability. Because the public disproportionately relies on information disseminated by the government, the government holds itself to substantially higher quality standards. Congress enacted the Information Quality Act (“IQA”) in order to ensure that information disseminated by government agencies meet the standards of “quality, objectivity, utility, and integrity.” 44 U.S.C. § 3516, note. Information disseminated by the government upon which the government and the public rely must be “presented in an accurate, clear, complete, and unbiased …

Patent Conflicts, Tejas N. Narechania

Tejas N. Narechania