Intellectual Property Law Commons^™

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Sonia Katyal

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Evan R. Youngstrom

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be …

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin C. Feldman, Mark A. Lemley, Jonathan S. Masur, Arti K. Rai

Robin C Feldman

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Gender Biases In Cyberspace: A Two-Stage Model For A Feminist Way Forward, Shlomit Yanisky-Ravid, Amy Mittelman

Shlomit Yanisky-Ravid Professor of Law

Increasingly, there has been a focus on creating democratic standards and procedures in order to best facilitate open exchange of information and communication online—a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a Cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution that social activists, Intellectual Property opponents …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter

Megan M Carpenter

This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …

Prerogative, Nationalized: The Social Formation Of Intellectual Property, Laura R. Ford

Laura R Ford

In this article, I offer a “social formation story” (Hirschman & Reed) of the emergence of intellectual property, as a new type of legal property in England. I treat the history of patents and copyrights together, and focus especially on the Constitutional transformations of the Sixteenth and Seventeenth Centuries that enabled this new, “intellectual” form of property to finally emerge in the Eighteenth Century. I open and conclude with the cases of Millar v. Taylor (King’s Bench 1769) and Donaldson v. Becket (House of Lords 1774), viewing these as the first cases in which the status of this new type …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Transformative Teaching And Educational Fair Use After Georgia State, Brandon C. Butler

Brandon C. Butler

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to first amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State e-reserves case, may be the last …

On Patenting Human Organisms Or How The Abortion Wars Feed Into The Ownership Fallacy, Yaniv Heled

Yaniv Heled

The idea of ominous technologies that put human individuals or parts of their bodies under someone else's control has been stirring emotions and terrifying people for centuries. It was a recent offshoot of this idea--the notion of “patenting humans”--that mobilized certain members of Congress to pass legislation prohibiting the issuance of patent claims “directed to or encompassing a human organism.” The values underlying this legislation may well have been agreeable, even admirable. Yet, the actual motivation for it was misguided; its execution, deeply flawed; its potential outcomes, hazardous

This Article reviews the history and background of this prohibition. It fleshes …

Patent Trolls As Parasites, Yaniv Heled

Yaniv Heled

This short commentary piece suggests that patent trolls may be better understood when viewed as analogous to biological parasites. Understanding patent trolls in this manner may help in explaining the patent troll phenomenon and in setting realistic expectations in the fight against them. It may also explain the difficulty in designing perfect solutions against patent trolls and why we must not be discouraged by this fact in our efforts to curb their harmful effects.

Response To 'Pervasive Sequence Patents Cover The Entire Human Genome', Shine Tu, Yaniv Heled

Yaniv Heled

In a widely reported article by Jeffrey Rosenfeld and Christopher Mason published in Genome Medicine, significant misstatements were made, because the authors did not sufficiently review the claims – which define the legal scope of a patent – in the patents they analyzed. Specifically, the authors do not provide an adequate basis for their assertion that 41% of the genes in the human genome have been claimed.

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

Trademark Law And The Prickly Ambivalence Of Post-Parodies, Charles E. Colman

Charles E. Colman

This Essay examines what I call "post-parodies" in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence. Unfortunately, current doctrine governing trademark parodies cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a …

The Fashion Lottery: Cooperative Innovation In Stochastic Markets, Jonathan Barnett, Gilles Grolleau, Sana El Harbi

Jonathan M Barnett

The fashion market is an anomaly: innovation is vigorous but original producers are substantially unprotected against imitation, which proliferates under an incomplete property regime consisting of strong trademark protections and weak design protections. We account for this anomaly through a “cooperative innovation” model where producers prefer an incomplete property regime that permits some imitation to alternative regimes that permit no imitation or all imitation, independent of budget constraints. A property regime that permits positive but limited levels of imitation operates as a form of group insurance that alleviates the risk of recoupment failure in a market characterized by demand uncertainty, …

Hollywood Deals: Soft Contracts For Hard Markets, Jonathan Barnett

Jonathan M Barnett

Hollywood film studios, talent and other deal participants regularly commit to, and undertake production of, high-stakes film projects on the basis of unsigned “deal memos”, informal communications or draft agreements whose legal enforceability is uncertain. These “soft contracts” constitute a hybrid instrument that addresses a challenging transactional environment where neither formal contract nor reputation effects adequately protect parties against the holdup risk and project risk inherent to a film project. Parties negotiate the degree of contractual formality, which correlates with legal enforceability, as a proxy for allocating these risks at a transaction-cost savings relative to a fully formalized and specified …

Friend Or Faux: The Trademark Counterfeiting Act's Inability To Stop The Sale Of Counterfeit Sporting Goods, Jennifer Riso

Jennifer Riso

The demand for counterfeit sporting goods, such as jerseys and other apparel, is on the rise as the prices of authentic goods continue to increase. The Trademark Counterfeiting Act of 1984 criminalizes the import and sale of counterfeit goods, but is ineffective at addressing the demand side of counterfeit goods. This paper analyzes the history behind the Act and recommends ways to ensure that the act will stay relevant as technology makes it easier to purchase counterfeit goods.

The Power Balance Revisited: Authors, Publishers And Copyright In The Digital Sphere, Francina Cantatore

Francina Cantatore

The transition of the printed word to digital product is arguably the most significant event in the history of publishing since the invention of the printing press, presenting authors with unexpected challenges. The evolving digital publishing environment has irrevocably changed the copyright expectations of authors, who find themselves grappling with the realities of both traditional expectations and digital advances in publishing. This article deals with the Australian author's place in an ever expanding digital sphere, copyright and publishing implications, and digital copyright challenges presented by this transitional environment. It also examines the views of Australian authors on the subject and …

Hacking The Anti-Hacking Statute: Using The Computer Fraud And Abuse Act To Secure Public Data Exclusivity, Nicholas A. Wolfe

Nicholas A Wolfe

Work smarter, not harder. Perhaps no other saying better captures the era of hyper-productivity and automation in which we live. Titles such as ‘Top Ten Hacks to Avoid Paywalls,’ ‘Five ways You’re Wasting Your time,’ and ‘One Weird Trick’ fly across our computer screens on a commoditized basis. [1] These tips and tricks help us automate our lives and get more done, faster. Better living through automation. However, as these shortcut solutions get better and automation advances, a question arises. When does working smarter cross the line into cheating?

The Computer Fraud and Abuse Act was designed to draw this …

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

N.I.G.G.A., Slumdog, Dyke, Jap, And Heeb: Reconsidering Disparaging Trademarks In A Post-Racial Era, Amanda E. Compton

Amanda E. Compton

Currently registration of disparaging trademarks is prohibited under Section 2(a) of the Lanham Act. Recent events, however, should reinvigorate the debate about the protection and registration of disparaging marks: (1) recent decisions published by the Trademark Trial and Appeal Board (TTAB) that continue to address and highlight the issues surrounding the registration of disparaging marks; (2) a proposed federal act that would not only specifically bar the registration of any trademark that includes the word “redskins,” but would also retroactively cancel any existing registration that consist of or includes that term; and (3) an amendment to a state act that …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Social Innovation, Peter Lee

Peter Lee

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical evidence to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

An Empirical Study: A Socio-Legal Approach To Gauging Attitudes To Intellectual Property Rights, Faris K. Nesheiwat, Mike Adcock

Ferris K Nesheiwat

This article seeks to provide a socio-legal framework for the examination of the attitude of a section of the Jordanian public towards intellectual property rights (IPRs), using copyright protected software as an example; it provides an overview of perceptions of IPRs within an Arabic and predominantly Muslim society, and examines how such perceptions impact attitudes towards abiding with, and enforcement of, IPRs. Through its analytical value and empirical research, this paper fills a void in the availability of reliable empirical data in Jordan as part of the analysis to gauge the impact of intellectual property (IP) laws. A review of …

Human Rights Frames In Ip Contests, Molly Land

Molly K. Land

No abstract provided.

Transparency, Robin C. Feldman

Robin C Feldman

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …