Intellectual Property Law Commons^™

The Accidental Agency?, Sapna Kumar

Florida Law Review

This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position …

Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton

UF Law Faculty Publications

Hot news is factual, time-sensitive information ranging from baseball scores to the outbreak of war. In recent years, hot news has found its own niche among legal scholars and courts. When deconstructed, though, hot news is simply information and, like most information, it has a public good character. The problem ultimately is that news is non-excludable and non-rivalrous – discoverers or creators of hot news cannot exclude others from using the news and hot news is not destroyed when used. This means it may be produced at levels that are less than optimal.

The critical element in hot news is …

Intellectual Property And Employee Selection, Elizabeth A. Rowe

UF Law Faculty Publications

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

Why History Matters In The Patentable Subject Matter Debate, Adam Mossoff

Florida Law Review

In America’s First Patents, Michael Risch proves that nothing beats the facts when it comes to making or assessing claims about the history of patentable subject matter doctrine. Of course, one might ask why we should care about history, especially when justifying or critiquing legal rules that secure property rights in twenty-first-century innovation in high-tech computers or biotech. It’s a fair question.

What Do America’S First Patents Have To Do With Today’S?, Kristen Osenga

Florida Law Review

I was excited to read Michael Risch’s latest Article,America’s First Patents, in large part because he and I generally agree, especially when it pertains to the topic of patent-eligible subject matter. In this Article, Professor Risch examines patent-eligible subject matter through a unique lens—history based on early patents.

Razing The Funhouse?, Shubha Ghosh

Florida Law Review

Whether as a scholar or just an ordinary thoughtful person, one cannot completely ignore history. At the same time, the past is annoying, used to promote a whole host of agendas in the guise of tradition, legitimacy, respect. Michael Risch’s engaging and just plain fun article looks at America’s First Patents and asks about the relevance of history to law.

Problems In Sharing The Surplus, Roger D. Blair, Thomas Knight

UF Law Faculty Publications

Dennis Carlton and Allan Shampine have addressed opportunistic and strategic behavior by standard-essential patent owners. After a standard has been specified, and sunk investments have been made by those who would implement the standard, the holder of a standard-essential patent can demand more for the patent license than it could have demanded ex ante. This sort of ex post opportunism can lead to economically inefficient outcomes. The solution is to limit such patent holders to “fair, reasonable, and non-discriminatory” (FRAND) patent license fees. Carlton and Shampine have advanced our understanding of precisely what this means.

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