Intellectual Property Law Commons^™

Tech Supremacy: The New Arms Race Between China And The United States, Xuan-Thao Nguyen

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In the brewing tech war between the United States and China, the quest for tech supremacy is in full force. Through enacting a series of laws and policies, China aims to reach its goal of tech supremacy. If China succeeds, U.S. corporations will face a daunting task in competing against Chinese products and services in core industries and in sectors where artificial intelligence and technological breakthroughs reign. This Article is the first to identify and analyze China’s 2022 Law on Science and Technology Progress, Personal Information Protection Law, Made in China 2025, National Intellectual Property Strategies, and digital currency e-CNY; …

Manufacturing Innovation, Xuan-Thao Nguyen

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Using intellectual property assets as the proxy for innovation measures, this paper provides a comprehensive analysis of the legal and policy strategies that form the foundation for China's new role as the global manufacturer of innovation. Manufacturing innovation is evident through China's multi-prong approach regarding intellectual property production and maximization. Significantly, among many other policies that target innovation, China encourages the production of innovation by accepting patents and trademarks as collateral assets for financing. Entrepreneurs can quickly obtain loans against their portfolios of patents and trademarks. China also requires enterprises seeking to undergo an initial public offering (IPO) on the …

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

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During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

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2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

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In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

Sovereign Patent Funds, Xuan-Thao Nguyen

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No abstract provided.

Data Collection And The Regulatory State, Hillary Green, James Cooper, Ahmed Ghappour, Felix Wu

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The following remarks were given on January 27, 2017 during the Connecticut Law Review's symposium, "Privacy, Security & Power: The State of Digital Surveillance."

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

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Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement …

Trademark Apologetic Justice: China And The Three Laws, Xuan-Thao Nguyen

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The article will proceed as follows. Part I discusses the three bodies of law constituting China’s trademark jurisprudence by tracing the development of Trademark Law, Anti-Unfair Competition Law and Civil Law. All of these laws contain relevant provisions pertaining to trademark reputation and remedies, including injunction, damages and public apology to eliminate any bad effects. As China Supreme People’s Court has a significant role in shaping trademark jurisprudence and apologetic justice, Part I also analyzes judicial directives that provide guidance and instructions to the lower courts in addressing trademark reputation remedies.

An analysis of only statutes and judicial directives, however, …

Apologies As Intellectual Property Remedies: Lessons From China, Xuan-Thao Nguyen

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It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of …

The History Of Intellectual Property Taxation: Promoting Innovations And Other Intellectual Property Goals, Xuan-Thao Nguyen, Jeffrey A. Maine

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No abstract provided.

Digital Multi-Media And The Limits Of Privacy Law, Jacqueline D. Lipton

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While digital video and multi-media technologies are becoming increasingly prevalent, existing privacy laws tend to focus on text-based personal records. Individuals have little recourse when concerned about infringements of their privacy interests in audio, video, and multi-media files. Often people are simply unaware that video or audio records have been made. Even if they are aware of the existence of the records, they may be unaware of potential legal remedies, or unable to afford legal recourse. This paper concentrates on the ability of individuals to obtain legal redress for unauthorized use of audio, video and multi-media content that infringes their …

Reply: The Complexity Of Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

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Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

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This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

Champagne, Feta, And Bourbon: The Spirited Debate About Geographical Indications, Justin Hughes

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Geographical Indications (GIs) are terms for foodstuffs that are associated with certain geographical areas. The law of GIs is currently in a state of flux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. This Article first examines the state of GIs throughout the world. The author then turns to the continuing debate between the European Union and other industrialized economies over this unique form of intellectual property. The European Union claims that increasing GI protection would aid developing countries, but, in …

The Best Patent Practice Or Mere Compromise? A Review Of The Current Draft Of The Substantive Patent Law Treaty And A Proposal For A "First-To-Invent" Exception For Domestic Applicants, Toshiko Takenaka

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Part I of this paper I review the past efforts of patent harmonization. In Part II, I review the current draft of the Substantive Patent Law Treaty (SPLT) and compare its major articles with Title 35 of the United States Code, the European Patent Convention (EPC), and Japanese Patent Law (JPL). In Part III, I analyze the changes expected by the integration of the SPLT into U.S. patent practice and examine if such changes would result in the best patent practice. I propose that the best practice takes into account underlying patent policies in such instances in which the changes …

Rethinking The United States First-To-Invent Principle From A Comparative Law Perspective: A Proposal To Restructure § 102 Novelty And Priority Provisions, Toshiko Takenaka

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This Article first examines the novelty and priority provisions of first-to-file countries, and then compares them with U.S. counterparts to identify major differences and determine why these differences result. The Article discusses the origins of the complex structure adopted by § 102 to define prior art and the difficult interpretation given to terms used in the novelty definition. This Article then reviews the USPTO's practice of the novelty examination and the priority determination in interference proceedings. This review confirms the first-to-file patent professional's perception that the United States, in fact, follows the first-to-file principle, although it also provides an exception …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

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The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Intellectual Property, Electronic Commerce And The Preliminary Draft Hague Jurisdiction And Judgments Convention, Ronald A. Brand

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On October 30, 1999, a Special Commission of the Hague Conference on Private International Law adopted a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("Preliminary Draft Convention," or "PDC") which was further developed in June of 2001.Originally scheduled for a final diplomatic conference in the fall of 2000, the negotiating process was delayed as a result of serious questions raised about the draft language.

After a discussion of the history of the convention, this paper presents a review of the Preliminary Draft Convention text, describing its structure and scope. It then provides a focus …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

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This Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United States …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

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Accordingly, this Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United …

Norms And Property In The Middle Kingdom, Glenn R. Butterton

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No abstract provided.

Doctrine Of Equivalents After Hilton Davis: A Comparative Law Analysis, Toshiko Takenaka

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This Article will address a number of major topics. First, it discusses the Federal Circuit's renewed interest in Graver Tank and the merger of the infringement test with the patentability test established by the Supreme Court in Graham v. John Deere Co. Then, this Article responds to the dissenting judges in Hilton Davis who emphasized the danger of uncertainty that stems from the in-principle application of the doctrine of equivalents. This response explains that the application of the doctrine does not increase the uncertainty in determining infringement but, rather, encourages clear, definitive claim drafting. It then examines the relationship …

Does A Cultural Barrier To Intellectual Property Trade Exist? The Japanese Example, Toshiko Takenaka

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What is the so-called "cultural barrier to intellectual property trade?" No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this "cultural barrier to intellectual property trade" theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign …

The Substantial Identity Rule Under The Japanese Novelty Standard, Toshiko Takenaka

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This article compares the novelty standard under Japanese patent law with the novelty standard under American patent law. This article first explains the structure of the novelty and inventive step provisions under Japanese patent law and examines the interpretation and basic legal theories of these provisions. The inventive step standard developed out of the novelty standard. Thus, to understand the inventive step standard, it is necessary to understand the novelty standard.

Next, this article discusses the unique features of the Japanese novelty standard. The strict novelty requirements of the patent laws of the United States and European countries are contrasted …

Performer's Rights And Digital Sampling Under U.S. And Japanese Law, Jessica D. Litman

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A year or two ago, one of my copyright students called to my attention a problem that seemed to him to pose unique difficulties for the copyright statute. The problem arises because of a technology called digital sampling.' Digital sampling is a new threat to performers' rights that has grown out of the combination of digital recording technology with music synthesizer technology. This threat is a very recent one. Indeed, the digital sampling problem is so new that copyright lawyers haven't yet figured out how to think about it.