Intellectual Property Law Commons^™

From Kafka To Kafta: Intellectual Property, And The Korea-Australia Free Trade Agreement, Matthew Rimmer

Matthew Rimmer

The Korea-Australia Free Trade Agreement 2014 (KAFTA) is a Kafkaesque agreement – with its secret texts, speculative claims, and shadowy tribunals. Australia and South Korea have signed a new free trade agreement - the Korea-Australia Free Trade Agreement2014 (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement. There has been much debate in the Australian Parliament over the transparency of the trade agreement; the scope of market access …

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets for …

A Century Of Patent Litigation In Perspective, Ron D. Katznelson

Ron D. Katznelson

When comparing patent litigation rates or “rarity” across decades, one must take into account the proportion to the actual scale of commercial activities that give rise to patent disputes. Such normalizing scales are preferably national metrics of commercial activity such as (a) the number of patents issued in the year, (b) the total number of patents in force over which disputes may arise, (c) the total number of Federal civil suits, or (d) the economic scale of the Gross National Product (GDP) in real dollars. This paper marshals for the first time information on all patent litigation in Federal district …

Hindsight Reasoning: What A Look At Past Innovation Under The Supreme Court’S New Alice Patent Eligibility Standards Reveals., Paul E. Schaafsma

Paul E Schaafsma

At the birth of the computer era, a trilogy of Supreme Court decisions dropped the ball on an intellectually honest accounting of patent eligible subject matter for innovations related to software, resulting in a future path paved with legal fictions. The recent Supreme Court decision in CLS Bank Int’l v. Alice Corp. Pty. Ltd., 573 U.S. ___, 134 S.Ct. 2347 (2014) not only perpetuates this path, it digresses into pre-1952 judicial subterfuge. For patent practitioners this situation is particularly troublesome because – just as with the Court’s pre-1952 standards – the Court’s newly enumerated standard for patent eligibility is essentially …

Legal And Scientific Flaws In The Myriad Genetics Litigation, Eric Grote

Eric Grote

In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court held that Myriad’s isolated BRCA DNA patent claims were invalid because an isolated DNA with the same sequence as a natural DNA is a product of nature. The decision has two fundamental flaws. First, due to a faulty claim construction by the trial court, the Supreme Court was never informed that isolated DNA is a synthetic molecule that is not actually isolated from nature, or that isolated DNA lacks functional information encoded by chemical modifications present in natural human DNA. Second, the Court ignored a long line of …

Intellectual Property And Copyrights, Sherif K. Shaheen Prof.

sherif k. shaheen Prof.

No abstract provided.

The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden

Rob Frieden

This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable operators. …

Internet Protocol Television And The Challenge Of “Mission Critical” Bits., Rob Frieden

Rob Frieden

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. Many consumers have become “technology agnostic” about what kind of wireline or wireless medium provides service. However, they expect carriers to offer access anytime, anywhere, via any device and in any format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a single channel and in only one presentation format. This paper assesses whether and how Internet Service Providers (“ISPs”) can offer …

Essential Facilities Doctrine And China’S Anti-Monopoly Law, Yong Huang, Elizabeth Xiao-Ru Wang, Xin Roger Zhang

Elizabeth Xiao-Ru Wang

No abstract provided.

A Supplementary Submission On Trojan Horse Clauses: Investor-State Dispute Settlement, Matthew Rimmer

Matthew Rimmer

Executive Summary This supplementary submission considers a number of new developments in Investor-State Dispute Settlement in Canada, North America, the European Union, and Africa. This supplementary submission highlights the application of Investor-State Dispute Settlement in the context of water rights, intellectual property, and media regulation. This supplementary submission also highlights the conflict between domestic courts and international tribunals in Investor-State Dispute Settlement, raising significant issues about the rule of law and justice. Recommendation 14 In light of the work of Maude Barlow and the Council of Canadians, it is evident that Investor-State Dispute Settlement has a significant impact upon water …

Reforming Copyright Interpretation, Zahr K. Said

Zahr K Said

This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the …

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

A Supplementary Submission To The Joint Standing Committee On Treaties On The Korea-Australia Free Trade Agreement, Matthew Rimmer

Matthew Rimmer

This supplementary submission responds to new developments regarding Investor-State Dispute Settlement; questions about transparency and the enforcement of labor and environmental standards in trade agreements; and the role of copyright exceptions in Korea.

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 …

De Dumb Starbucks Y Otros Demonios ¿La Parodia Justifica El Uso De Marca Ajena?, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

A Submission To The Joint Standing Committee On Treaties On The Korea-Australia Free Trade Agreement (Kafta), Matthew Rimmer

Matthew Rimmer

Australia and South Korea have signed a new free trade agreement - the Korea-Australia Free Trade Agreement (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement There has been much debate in Parliament over the transparency of the trade agreement; the scope of market access provided under the deal; the impact of the investment chapter, with its investor-state dispute settlement clause; the intellectual property chapter; the environment chapter; …

Key Change: The Role Of The Creative Industries In Climate Change Action, Tim Hollo

Matthew Rimmer

The role of the creative industries – arts and artists – in helping to drive the changes in laws and behaviours that are necessary to tackle climate change, while not superficially obvious, is a deep one. Arts and artists of all kinds, as cultural practitioners, have been closely entwined with social change and social control since time immemorial, in large part because they help shape our understanding of the world, framing ideas, prefiguring change, and opening hearts and minds to new ways of thinking. They have played a major role in campaigns for law reform on many issues, and climate …

Eu Trademark Regulation 2013, Rebecca Wong Dr

Dr Rebecca Wong

It has been almost five years since the changes were last made to the Trademark Directive back in 2008. The latest proposals for the reform the EU Trademark Regulation does not propose a major overhaul, but rather updates the current EU trademark framework and address the inconsistencies that exist between the Trademark Directive 2008/95/EC and Community Trademark Regulation 207/2009/EC. The aim of this article is to review the latest proposals of the EU Trademark Regulation and evaluate the extent to which these changes are likely to affect the current legal framework for trademarks. Some of the major changes include the …

An Investigation Of The Role Of Wipo Arbitration Rules In Intellectual Property Dispute Resolutions, Hamid Nasseri

Hamid Nasseri

Abstract

WIPO arbitration rules which became imperative in 2002 is one of the most comprehensive and professional rules for the settlement of intellectual property disputes. These arbitration rules are the best in settling intellectual property disputes when we take into consideration the significant issues relevant to the procedure of settling intellectual property disputes such as: the possibility of direct access of individuals to arbitration, the speed of arbitration, professionalism, organizational claims, predictions of the likelihood of appeal to alternative approaches, confidentiality of arbitration as well as the arrangement of protection schemes.

Invalid Pre-Termination Grants And The Challenge To Obtain A Remedy, Samuel H. Jones

Samuel H Jones

The 1976 Copyright Act created what is now commonly known as the termination right, which allows authors to unilaterally terminate prior grants of their copyrights and reclaim ownership. This right was created, in large part, to liberate authors from unremunerative agreements previously entered into when the value of their copyrighted works had not yet been realized. It can be a powerful tool for authors to leverage more favorable agreements than they were previously able, particularly when those copyrights are highly valued. To ensure authors’ ability to exercise this right, Congress enacted provisions in the 1976 Copyright Act that prohibit authors …

China's Role In Well-Known Marks Protection: It's Now Or Never...Or Dilution, Ava Farshidi

Ava Farshidi

Infringement over the transliteration, converting text to another script, of well-known marks is a major problem for foreign companies in China. If a multinational company does not create its own Chinese transliteration, the Chinese public may create one, which will ultimately affect the company’s ownership of the mark in a different language. Although China became a member of both the Paris Convention for the Protection of Intellectual Property (“Paris Convention”) and the agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), China has adopted laws that directly conflict with these international guidelines for well-known marks, which has paved the way …

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 Transmit Clause Test: A Pragmatic Approach To A Contemporary Understanding Of The Ambiguity In The Copyright Act’S Transmit Clause, Samantha Tilipman

Samantha Tilipman

The 1976 Copyright Act was a response to development of new technology and an attempt to clarify copyright law to promote further investment in the burgeoning sphere of cable systems.[1] In drafting the provisions of the new Act, Congress created the “Transmit Clause,” a key passage nestled into the definition of “to perform or display a work ‘publicly.’”[2]The ambiguity of the Transmit Clause has led the circuits to interpret it differently leading to conflicting caselaw on opposite ends of the nation. The purpose of this note is to provide the Supreme Court of the United States and …

Trojan Horse Clauses: Investor-State Dispute Settlement. A Submission To The Australian Parliament., Matthew Rimmer

Matthew Rimmer

‘The Trans-Pacific Partnership (TPP) proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible. The investor state dispute resolution mechanisms should not be shrouded in mystery to the general public, while the same provisions are routinely discussed with advisors to big corporations.’ Professor Joseph Stiglitz, Nobel Laureate in Economics

‘Investment arbitration as currently constituted is not a fair, independent, and balanced method for the resolution of disputes between sovereign nations and private investors.’ Retired Justice Elizabeth Evatt and leading jurists

‘Opening …

Decoding Bollywood’S Royalty-Sharing Conundrum, Pralika Jain

Pralika Jain

India’s film making community and business got „industry‟ status only in 2011. However, unlike major industries such as telecom and pharmaceutical, the film industry (popularly known as “Bollywood”) is characterised by a major lack of legal rules and institutions to administer them, the problem being most acute in respect of artists. Consequently, the industry is governed completely by market forces whose successful players wield nearly all the bargaining power. It’s almost baffling that a film industry which is currently worlds second in terms of revenue is so thinly regulated.

Se Venden Tabas, Micas, Chelas Y Puchos: Sobre Las Jergas Y/O Peruanismos Como Signos Distintivos, Javier André Murillo Chávez, Miryam Stephanie Palacios Mendoza

Javier André Murillo Chávez

No abstract provided.

The Infringement Continuum, Bernard H. Chao

Bernard H Chao

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations; suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill-suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

Commercialization Awards, Camilla A. Hrdy

Camilla A Hrdy

Some patent law scholars have proposed introducing new forms of patents to promote commercialization of inventions that would not otherwise be commercialized, or at least not within a reasonable period of time. In this Article I suggest that so-called commercialization patents are unnecessary because the United States already has a system for promoting commercialization of inventions that does not require creating unprecedented exclusive rights: direct government financing. Drawing on statutes and administrative codes, I provide an in-depth account of the major commercialization financing options for inventors and entrepreneurs at both the federal and state levels. I then compare these incentives, …

Dissolving Innovation In Meltwater: A Misguided Paradigm For Online Search, Bill D. Herman

Bill D. Herman

With the exponential increases in online information, internet search engines have helped fill a substantial and growing need for the capacity to sort through and manage data. News outlets in general and newspapers in particular are among the most socially important sources of online content being indexed, and these outlets are faring rather poorly in the internet economy. Both of these sectors are thus in a precarious, potentially conflicted relationship, with copyright law serving as the primary legal basis for mediating the relationship. A 2013 decision, Associated Press v. Meltwater, is one recent attempt to mediate this relationship. In …

Dissolving Innovation In Meltwater: A Misguided Paradigm For Online Search, Bill D. Herman

Bill D. Herman

With the exponential increases in online information, internet search engines have helped fill a substantial and growing need for the capacity to sort through and manage data. News outlets in general and newspapers in particular are among the most socially important sources of online content being indexed, and these outlets are faring rather poorly in the internet economy. Both of these sectors are thus in a precarious, potentially conflicted relationship, with copyright law serving as the primary legal basis for mediating the relationship. A 2013 decision, Associated Press v. Meltwater, is one recent attempt to mediate this relationship. In …