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Intellectual Property Law Commons

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A Qualitative Method For Investigating Design, Jessica Silbey, Mark P. McKenna 2023 Boston University School of Law

A Qualitative Method For Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the ...


Centering Black Women In Patent History, Jessica Silbey 2022 Boston University School of Law

Centering Black Women In Patent History, Jessica Silbey

Faculty Scholarship

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through ...


Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu 2022 Texas A&M University School of Law

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

IP Theory

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon ...


Discretionary Denial Of Inter Partes Review And The Patent Trial And Appeal Board, Xinni Cai 2022 Fordham University School of Law

Discretionary Denial Of Inter Partes Review And The Patent Trial And Appeal Board, Xinni Cai

Fordham Law Review

The inter partes review (IPR) is an administrative procedure conducted by the Patent Trial and Appeal Board (PTAB), an adjudicative body within the U.S. Patent and Trademark Office (USPTO). IPR provides an opportunity for third parties to challenge a patent’s validity after it has already been granted. A petitioner can file a petition with the PTAB to “institute” IPR. If the review is instituted, the PTAB considers the evidence presented and issues a final written decision, either holding the patent valid or striking it down as invalid. Although IPR was introduced as an alternative to litigation, it is ...


The Value In Secrecy, Camilla A. Hrdy 2022 University of Akron School of Law

The Value In Secrecy, Camilla A. Hrdy

Fordham Law Review

Trade secret law is seen as the most inclusive of intellectual property regimes. So long as information can be kept secret, the wisdom goes, it can be protected under trade secret law, even if patent and copyright protections are unavailable. But keeping it a secret does not magically transform information into a trade secret. The information must also derive economic value from being kept secret from others. This elusive statutory requirement—called “independent economic value”—might at first glance seem redundant, especially in the context of litigation. After all, if information had no value, why would the plaintiff have bothered ...


Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan 2022 Fordham University School of Law

Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan

Fordham Law Review

The market for luxury resale is booming and is predicted to continue its massive growth. Luxury resellers typically market and describe goods using the luxury brand’s trademarks, including the brand name and logos. Luxury brands utilize their market power to “bully” smaller resellers and often take issue with third parties using their trademarks in any context, even when the use of the mark does not encroach on the luxury brand’s share of the market. However, the doctrine of nominative fair use allows the use of a brand’s trademark when referring to that brand’s goods. An alleged ...


The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya 2022 University of Venda

The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya

Joint PIJIP/TLS Research Paper Series

This report is based on desk research conducted from June 2021 to May 2022 by way of a survey of publicly available information on Reproduction Rights Organisations (RROs) in all 55 African Union (AU) member states. It is the first of a two-part study. The second part of the study will be conducted as empirical research where data will be obtained from relevant stakeholders in the collective management systems of African countries to address key issues flagged in this report as requiring further evidence.

This report examines the current status of RROs in Africa to help inform policy and legislative ...


Path Choice Of Algorithm Intellectual Property Protection, Yulu JIN, Youdan XIAO 2022 Law School, Beijing Normal University, Beijing 100875, China

Path Choice Of Algorithm Intellectual Property Protection, Yulu Jin, Youdan Xiao

Bulletin of Chinese Academy of Sciences (Chinese Version)

Protection of algorithm by intellectual property is a powerful way to stimulate innovation and regulate the risk of the algorithm. Algorithm that can be protected by intellectual property right is the program algorithm, which is compiled in computer language, in the form of coded instruction sequence, run by the computer and produce independent rational value results. The article is combed out that there are drawbacks to the traditional path of IP to protect program algorithms:it has conflict between program algorithm and copyright law system; the trade secret path is at odds with program algorithmic governance; and program algorithm can ...


Providing Farmers With The Legal Tools Needed To Keep The Equipment Running: An Update On The Agricultural Right To Repair Movement, Greg Nies, Bruce Elder 2022 University of Nebraska at Kearney

Providing Farmers With The Legal Tools Needed To Keep The Equipment Running: An Update On The Agricultural Right To Repair Movement, Greg Nies, Bruce Elder

Mountain Plains Business Conference

This presentation examines and summarizes the right to repair movement from the perspective of its origins, development, legal basis and – most significantly – its unique manifestation within an agriculture perspective. The agricultural equipment sector is more concentrated and less competitive than many other industries, while the typical farmer remains fiercely independent and self-reliant. This unique situation has led to conflict, forming the basis of the current agricultural right to repair dispute. Accordingly, the current state of the agricultural right to repair movement is examined and explained based on the recent policy, legislation, and litigation efforts employed at federal and state levels.


How Did Prince And Andy Warhol Wind Up Before The Supreme Court?, Jessica Silbey 2022 Boston University School of Law

How Did Prince And Andy Warhol Wind Up Before The Supreme Court?, Jessica Silbey

Shorter Faculty Works

The US Supreme Court will take another crack at defining the fair use doctrine of copyright law—a standard that has so far remained fairly oblique in the law. And to do so, the justices will have to consider the history of a law that stretches back to the earliest renderings of life in the United States.

The case before the court on October 12, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, hinges on a portrait of the artist Prince by photographer Lynn Goldsmith.

Goldsmith photographed the musician in her studio in 1981, just as his career ...


Life After Google V. Oracle: Three Reflections On A Theme, Daryl Lim 2022 Penn State Dickinson Law

Life After Google V. Oracle: Three Reflections On A Theme, Daryl Lim

IP Theory

In 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects ...


Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser 2022 Cleveland-Marshall College of Law, Cleveland State University

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.


How Muralists, Street Artists, And Graffiti Writers Can Protect Their Artworks, Enrico Bonadio 2022 University of St. Thomas, Minnesota

How Muralists, Street Artists, And Graffiti Writers Can Protect Their Artworks, Enrico Bonadio

University of St. Thomas Law Journal

No abstract provided.


Intellectual Property Liberation: An Essay, Kali Murray 2022 University of St. Thomas, Minnesota

Intellectual Property Liberation: An Essay, Kali Murray

University of St. Thomas Law Journal

No abstract provided.


Two Essays On Intellectual Property And Social Justice, Thomas C. Berg 2022 University of St. Thomas School of Law

Two Essays On Intellectual Property And Social Justice, Thomas C. Berg

University of St. Thomas Law Journal

No abstract provided.


Street And Graffiti Art Between Augmented Reality And Artificial Intelligence: A Copyright Perspective, Enrico Bonadio, Siri-Helen Egeland 2022 University of St. Thomas, Minnesota

Street And Graffiti Art Between Augmented Reality And Artificial Intelligence: A Copyright Perspective, Enrico Bonadio, Siri-Helen Egeland

University of St. Thomas Law Journal

No abstract provided.


Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa 2022 Santa Clara University School of Law

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

IP Theory

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted ...


Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer 2022 University of California Berkeley School of Law

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend ...


Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter 2022 North-West University (South Africa)

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights ...


Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri 2022 Washington and Lee University School of Law

Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright ...


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