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Articles 1 - 22 of 22
Full-Text Articles in Intellectual Property Law
Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian
Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian
Michigan Telecommunications & Technology Law Review
Autonomous and connected vehicles (ACVs) are a transformational force for humanity. It is highly likely that some owners of ACVs will circumvent their vehicle software to expose unauthorized functionality, known as “jailbreaking”. This would trigger copyright liability, the extent of which would be dependent upon the copyright system’s various rulemaking processes and common law interpretations. This note explores the world of software “jailbreaking”, with its roots in smartphone unlocking, and extrapolates that to ACVs. Some compelling (and at times dangerous) scenarios are contemplated, and recommendations are made for consumers, technologists, manufacturers, and policy makers.
Before Mayo & After Alice: The Changing Concept Of Abstract Ideas, Magnus Gan
Before Mayo & After Alice: The Changing Concept Of Abstract Ideas, Magnus Gan
Michigan Telecommunications & Technology Law Review
Mayo v. Prometheus and Alice v. CLS are landmark Supreme Court decisions which respectively introduced and then instituted a new, two-step patent-eligibility test. Step One tests the patent claims for abstractness, while Step Two tests for inventive application. This new test was so demanding that in the one-year period after Alice was decided, over 80 percent of all challenged patents had one or more claims invalidated. In fact, at the Federal Circuit over the same time period, only one recorded case of a successful Alice defense exists—DDR Holdings v. Hotels.com. This note explains DDR’s success as an inconsistency …
The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah Brennan
The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah Brennan
Michigan Telecommunications & Technology Law Review
The United States spends nearly $1,000 per person annually on drugs—forty percent more than the next highest spender, Canada, and more than twice the amount France and Germany spend. Although myriad factors contribute to high drug spending in the United States, intellectual property law plays a crucial and well-documented role in inhibiting access to cheaper, generic medications. Yet, for the most part, the discussion of the relationship between intellectual property law and drug spending has centered on patent protection. Recently, however, a few researchers have turned their attention to a different avenue of exclusivity—trademark law. New studies suggest that pharmaceutical …
More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller
More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller
Michigan Telecommunications & Technology Law Review
Although many developing economies are increasingly influencing the global economy, China’s influence has been the greatest of these by far. Once hindered from competition by political and economic restrictions, China is now a major economic player. As China’s economic might has grown, so too has the demand for intellectual property protection for technologies originating from China. In this article, we present a detailed empirical study of Chinese patenting trends in the United States and the implications of these trends for the global economy. We compare these trends to patenting trends from earlier decades. Specifically, we compare Chinese patenting trends to …
Holding Up And Holding Out, Colleen V. Chien
Holding Up And Holding Out, Colleen V. Chien
Michigan Telecommunications & Technology Law Review
Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it is most vulnerable—after it has implemented a technology—and is able wrest a settlement because it is too late for the company to change course. Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises, and the ex ante assertion of technology patents whether in the smartphone war, standards, or patent “troll” context. …
After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough
After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough
Michigan Telecommunications & Technology Law Review
35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the …
District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji
District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji
Michigan Telecommunications & Technology Law Review
Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Michigan Telecommunications & Technology Law Review
A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …
Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento
Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento
Michigan Telecommunications & Technology Law Review
Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …
Patents V. Statutory Exclusivities In Biological Pharmaceuticals - Do We Really Need Both, Yaniv Heled
Patents V. Statutory Exclusivities In Biological Pharmaceuticals - Do We Really Need Both, Yaniv Heled
Michigan Telecommunications & Technology Law Review
Over the past decade or so, the United States has been the arena of a boisterous debate regarding the creation of a new regulatory framework for the approval of generic versions of biologics-based pharmaceutical products (also known as "biological products" and "biologics")--an important and increasingly growing class of drugs. The basic purpose of such a framework is to create a fast and less-costly route to FDA approval for biologics that would be similar or identical to already-approved biological products--typically ones that are sold on the market at monopoly rates--thereby allowing cheaper versions of such medicines to enter the market. One …
Res Or Rules - Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris
Res Or Rules - Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris
Michigan Telecommunications & Technology Law Review
The Article proceeds as follows. Part I reviews the basics of patent claiming, the traditional view of claims as real property deeds, and why uncertainty as to the boundaries of those deeds is considered undesirable. Part II critiques the analogy between real property deeds and patent claims, highlighting in particular the requisite novelty and conceptual nature of the patent res, the differences between the purposes of the patent system and real property regimes, and the effect of these different purposes on the expected predictability of patent boundaries. Part III then changes the analogy from patent claims as property deeds to …
Media-Rich Input Application Liability, David R. Krohn, Pekarek
Media-Rich Input Application Liability, David R. Krohn, Pekarek
Michigan Telecommunications & Technology Law Review
Until recently, media-rich online interactions were mostly unidirectional: multimedia content was delivered by the service provider to the user. Input from the user came almost exclusively in the form of text. Even when searching the Internet for images or audio, a user typically entered text into a search engine. In addition, search engines indexed multimedia content by analyzing not the content itself but the text surrounding it. This is rapidly changing. With the rise of multimedia-capable smartphones and wireless broadband, applications that allow users to search using non-textual inputs are quickly becoming popular. These applications go much further than simply …
Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance
Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance
Michigan Telecommunications & Technology Law Review
A widespread perception among the patent law community is that the patent system would be more effective if judges with technical backgrounds and patent law experience decided patent disputes. Proponents believe that if judges all had similar baseline knowledge of technological analysis, there would be more consistency in decision-making, leading to more predictability for parties. Some district courts have unofficially become semi-specialized in patent law disputes, and Congress is debating whether to institute a more formalized Patent Pilot Program in which district court judges specialize in patent law cases. This Note joins the debate and examines patent law cases at …
Patenting By Entrepreneurs: An Empirical Study, Ted Sichelman, Stuart J.H. Graham
Patenting By Entrepreneurs: An Empirical Study, Ted Sichelman, Stuart J.H. Graham
Michigan Telecommunications & Technology Law Review
[T]he Ewing Marion Kauffman Foundation--an organization that studies and promotes entrepreneurship in the United States--funded an effort at the University of California, Berkeley School of Law, to undertake the first comprehensive survey of the relationship between patenting and entrepreneurship in the United States. The authors, along with other investigators, administered the survey in 2008 to approximately 15,000 startup and early-stage companies in the biotechnology, medical device, information technology (IT) hardware, and software and Internet sectors. A portion of the survey examined why entrepreneurs, startups, and early-stage companies do (and do not) seek patents. This Article reports and analyzes results from …
Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann
Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann
Michigan Telecommunications & Technology Law Review
In this Article, I argue that a new approach to biotechnology patenting is necessary to fully realize the tremendous potential of recent advances in our understanding of the human genome. Part I places the gene patenting debate in context by highlighting the key landmarks that have shaped the biotechnology industry and outlining the products and stakeholders that comprise the industry. Part II describes the current state of the law on biotechnology patents, summarizing the Federal Circuit's application of the various doctrines that collectively define the patent landscape's parameters. In this Part, I explain how the Federal Circuit's jurisprudence is tied …
What Is Hiding In The Bushes - Ebay's Effect On Holdout Behavior In Patent Thickets, Gavin D. George
What Is Hiding In The Bushes - Ebay's Effect On Holdout Behavior In Patent Thickets, Gavin D. George
Michigan Telecommunications & Technology Law Review
Importantly, at least a few relevant patent holders are inevitably left out of an industry organization's collection of patents. These left-out patent holders, known as "holdouts," can undermine the collective arrangement with demand letters and infringement suits.[...] The first part of this Note explains why holdouts exist in the first place, given the benefits of joining an organization of collected patents. In the second part of this Note, I explore the lack of legal protections against holdout demands offered by pre-eBay patent law. The third part of this Note introduces the eBay decision as revolutionary addition to list of legal …
Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm
Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm
Michigan Telecommunications & Technology Law Review
Before the unanimous decision in eBay v. MercExchange, patent holders were almost always granted an injunction against an infringer. In fact, the Federal Circuit, in deciding eBay, noted that, upon a finding of infringement, an injunction would issue unless there were extraordinary circumstances. The Court, in a brief opinion, disagreed with the Federal Circuit and explained that the injunction issue in a patent case must be analyzed under the traditional four-factor test.[...] Is the four-factor test fairer or better than the Federal Circuit's near-automatic injunction rule? It is certainly more difficult to administer a factor test as compared to a …
Supporting Innovation In Targeted Treatments: Licenses Of Right To Nih-Funded Research Tools, Tanuja V. Garde
Supporting Innovation In Targeted Treatments: Licenses Of Right To Nih-Funded Research Tools, Tanuja V. Garde
Michigan Telecommunications & Technology Law Review
Support for new drug development has taken some interesting turns in current patent law jurisprudence. Beginning with the severe curtailment of scope of the common law experimental use doctrine in Madey v. Duke University, and culminating with the recent Supreme Court decision in Merck KGaA v. Integra Lifesciences I, Ltd., broadening the scope of the statutory research exemption, the freedom to conduct experimental research using another's patented inventions becomes dependent in part on the purpose of the research. That the patent at issue in Merck was characterized by the Federal Circuit as being directed to a research tool raised the …
Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola
Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola
Michigan Telecommunications & Technology Law Review
Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to …
The Experimental Purpose Doctrine And Biomedical Research, Tao Huang
The Experimental Purpose Doctrine And Biomedical Research, Tao Huang
Michigan Telecommunications & Technology Law Review
The experimental use doctrine is a common law rule in patent law that until a few years ago excused accused infringers who made and used patented products or processes on the basis of an experimental, educational, or nonprofit purpose when there was de minimis economic injury to the patent owner and de minimis economic gain to the infringer. While the application of the experimental purpose doctrine was always narrow, two recent Federal Circuit decisions indicate that there is not much left under its aegis. In Madey v. Duke University, the Federal Circuit strictly limited the application of the experimental purpose …
Better, Faster, Cheaper - Later: What Happens When Technologies Are Suppressed, Kurt M. Saunders, Linda Levine
Better, Faster, Cheaper - Later: What Happens When Technologies Are Suppressed, Kurt M. Saunders, Linda Levine
Michigan Telecommunications & Technology Law Review
Some inventions never see the light of day. Others enter the spotlight after long delays and the factors that slowed the arrival of that innovation are ignored. Technology suppression is a real occurrence involving well known and widely used products. In this Article, we examine the topic of technology suppression, seeking to reveal the tactics of suppression and the patterns and conditions under which it occurs. Current examples of US technologies are used to highlight the significance of this phenomenon. We consider related factors, including market and innovation forces, and we identify suppressive tactics, using illustrative cases where patent nonuse …
Taking A Bite Out Of Circumvention: Analyzing 17 U.S.C. 1201 As A Criminal Law, Jason M. Schulz
Taking A Bite Out Of Circumvention: Analyzing 17 U.S.C. 1201 As A Criminal Law, Jason M. Schulz
Michigan Telecommunications & Technology Law Review
...information content providers who depend heavily on copyright law are growing increasingly wary of advances in digital technology that allow manipulation of their content and potentially diminish the effectiveness of their copyright protection. Technology firms, on the other hand, are looking more and more at developing products which provide low-cost, high quality access to content without restriction. Thus, as technologists work feverishly to find new ways to free up information, content providers are fighting just as hard to constrain access in order to prevent market-killing duplication and distribution of their works. These two codependent yet clashing interest groups recently met …