Intellectual Property Law Commons^™

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 …

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

The Final Impression Counts - Seeking Common Ground In Design Patent Infringement, Dana Beldiman, Paolo Beconcini

Dana Beldiman

THE FINAL IMPRESSION COUNTS – Seeking Common Ground in Design Patent Infringement

Dana Beldiman*and Paolo Beconcini

Abstract

The visual appearance of products has become an asset of considerable economic value. Litigation surrounding it is increasingly common and has focused IP law on certain tensions that relate to the visual nature of IP assets.

One such area is design patent infringement. Policy mandates that comparison of two similar designs for purposes of evaluating infringement be performed by a notional purchaser, based on the overall impression of a design as whole. However, in performing the analysis courts are tempted to …

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Network Neutrality And Consumer Demand For “Better Than Best Efforts” Traffic Management, Rob Frieden

Rob Frieden

This paper assesses whether and how ISPs can offer quality of service enhancements, at premium prices for full motion video, while still complying with the new rules and regulations established by the Federal Communications Commission (“FCC”) in March, 2015. The paper explains that having made the controversial decision to reclassify all forms of Internet access as a telecommunications service, the FCC increases regulatory uncertainty. In particular, the FCC has failed to identify instances where “retail ISPs,” serving residential broadband subscribers, can offer quality of service enhancements that serve real consumer wants without harming competition and the ability of most content …

The World’S Laboratory: China’S Patent Boom, It Standards And The Implications For The Global Knowledge, Christopher Mcelwain, Dennis Fernandez

Christopher McElwain

Just as China’s factories disrupted the economics of IT hardware, its research labs have the potential to disrupt the economics of the technology itself. In 2014, China’s patent office received nearly 2.4 million patent applications, 93% from domestic applicants. China has also climbed to third place in terms of international applications, with over 21,000 WIPO PCT applications. Meanwhile, China has taken an assertive role in setting technology standards, both at the national and international levels. In the past, this has included developing and promoting alternatives to important IT standards as a means of challenging perceived monopolies by certain (foreign-dominated) technologies. …

Ninth Circuit Nine-Plus -- Settling The Law In Internet Keyword Advertising And Trademark Use, Andrew Leahey

Andrew Leahey

No abstract provided.

The Irrelevance Of Nanotechnology Patents, Emily Michiko Morris

Emily Michiko Morris

Once the stuff of science fiction, nanotechnology is now expected to be the next technological revolution, but despite millions of dollars of investment, we still have yet to see the brave new world of cheap energy, cell-specific drug delivery systems, and self-replicating nanobots that nanotechnology promises. Instead, nanotechnology seems to be in a holding pattern, perpetually stuck in the status of “emerging science,” “immature field,” and “new technology” for over three decades now. Why? Professor Mark Lemley and a number of others have suggested that the answer to this puzzling question is simple: nanotechnology differs from the all of the …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno

Constance E. Bagley

In 2014, the European Commission announced the launch of a study of knowledge transfer by public research organizations and other institutes of higher learning “to determine which additional measures might be needed to ensure an optimal flow of knowledge between the public research organisations and business thereby contributing to the development of the knowledge based economy.” As the European Commission has recognized, the EU needs to take action to “unlock the potential of IPRs [intellectual property rights] that lie dormant in universities, research institutes and companies.” This article builds on our earlier work on structuring efficient pharmaceutical public-private partnerships (PPPPs) …

Holding Standards For Randsome: A Remedial Perspective On Rand Licensing Commitments, Layne S. Keele

Layne S. Keele

In Apple, Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014), the four federal judges who considered the case—Judge Posner by designation at the trial level, and three Federal Circuit judges on appeal—all expressed differing opinions on the question of whether and to what extent extraordinary patent remedies should be available for the infringement of standard-essential patents. This article aims to simplify this muddled and confusing topic.

The article employs a teleological approach, examining the purposes behind remedies in general, the purposes of extraordinary remedies in patent law, and the purposes of RAND commitments (commitments to license standard-essential …

Managing Cyberthreat, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Cyber security is an important strategic and governance issue. However, because most corporate CEOs and directors have no formal engineering or information technology training, it is understandable that their lack of actual cybersecurity knowledge is problematic. Particularly among smaller companies having limited resources, knowledge regarding what their enterprise should actually be doing about cybersecurity can’t be all that good. My goal in this article is to explore the unusually complex subject of cybersecurity in a highly readable manner. First, an examination of recent threats is provided. Next, governmental policy initiatives are discussed. Third, some basic tools that can be used …

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …

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 …

One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood

Jonathan R. K. Stroud

Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …

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 …

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 …

“Can I Profit From My Own Name And Likeness As A College Athlete?” The Predictive Legal Analytics Of A College Player’S Publicity Rights Vs. First Amendment Rights Of Others, Roger M. Groves

Roger M. Groves

Two federal court decisions during 2013 have changed the game for college students versus the schools, the NCAA and video game makers. This article explores whether for the first time in history these athletes can profit from their own name and likeness and prevent others from doing so. But those cases still leave many untested applications to new facts – facts that the courts have not faced. Particularly intriguing is how 21st Century technology will apply to this area in future litigation. No publicity rights case or article to date has explored the application of predictive analytics, computer programs, algorithms, …

The Host's Dilemma: Strategic Forfeiture In Platform Markets For Informational Goods, Jonathan M. Barnett

Jonathan M Barnett

Voluntary forfeiture of intellectual assets—often, exceptionally valuable assets--is surprisingly widespread in information technology markets. A simple economic rationale can account for these practices. By giving away access to core technologies, a platform holder commits against expropriating (and thereby induces) user investments that support platform value. To generate revenues that cover development and maintenance costs, the platform holder must regulate access to other goods and services within the total consumption bundle. The tradeoff between forfeiting access (to induce adoption) and regulating access (to recover costs) anticipates the substantial convergence of open and closed innovation models. Organizational patterns in the software and …

From Patent Thickets To Patent Networks: The Legal Infrastructure Of The Digital Economy, Jonathan M. Barnett

Jonathan M Barnett

Scholarly and popular commentary often assert that markets characterized by intensive patent issuance and enforcement suffer from “patent thickets” that suppress innovation. This assertion is difficult to reconcile with continuous robust levels of R&D investment, coupled with declining prices, in technology markets that have operated under intensive patent issuance and enforcement for several decades. Using network visualization software, I show that information and communication technology markets rely on patent pools and other cross-licensing structures to mitigate or avoid patent thickets and associated inefficiencies. Based on the composition, structure, terms and pricing of selected leading patent pools in the ICT market, …

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 …

To Read Or Not To Read: Privacy Within Social Networks, The Entitlement Of Employees To A Virtual “Private Zone” And The Balloon Theory, Shlomit Yanisky-Ravid

Shlomit Yanisky-Ravid Professor of Law

Social networking has increasingly become the most common venue of self-expression in the digital era. Although social networks started as a social vehicle, they have recently become a major source for employers to track personal data ("screening") of applicants, employees or former employees.

This article addresses the questions of whether this casual business routine harms employees' rights to privacy with regard to data users post in social networks, what the drawbacks of this routine may be, and why and how privacy rights should be protected to secure private zones within the virtual sphere. The article suggests that a privacy right …

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 …

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; …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Federal And State Authority For Network Neutrality And Broadband Regulation, Tejas N. Narechania

Tejas N. Narechania

For the second time in less than four years, the D.C. Circuit has rebuffed the Federal Communications Commission’s attempt at imposing network neutrality rules on internet traffic. But in so doing, the D.C. Circuit affirmed the FCC’s theory of jurisdiction based on section 706 of the Telecommunications Act of 1996. This ruling has the significant effect of transforming a questionable source of authority into what may become the Commission’s most significant font of regulatory power.

Surprisingly, section 706 seems to give the Commission the power to implement a slightly revised set of network neutrality rules. By narrowing the scope 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 …