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Reconsidering The Georgia-Pacific Standard For Reasonable Royalty Patent Damages, Christopher B. Seaman 2009 Washington and Lee University School of Law

Reconsidering The Georgia-Pacific Standard For Reasonable Royalty Patent Damages, Christopher B. Seaman

Christopher B. Seaman

Determining damages for infringement is one of the most important—and controversial—issues in current patent litigation. The current fifteen-factor Georgia-Pacific standard for determining a reasonable royalty has become increasingly difficult for juries to apply in patent disputes involving complex, high-technology products, resulting in unpredictable damage awards that tend to overcompensate patentees. This Article proposes a more manageable alternative to Georgia-Pacific when an acceptable noninfringing substitute for the patented technology exists. Specifically, in a hypothetical bargain for a patent license, both economic and negotiation theory explain that a rational patent licensor would agree to pay only the costs it would ...


An Australian Copyright Revolution And Its Relevance For Uk Jurisprudence: Icetv In The Light Of Infopaq V Danske, Justine Pila 2009 University of Oxford

An Australian Copyright Revolution And Its Relevance For Uk Jurisprudence: Icetv In The Light Of Infopaq V Danske, Justine Pila

Justine Pila

The purpose of this paper is to consider the High Court of Australia’s decision in IceTV v Nine Network (2009) and its relevance for UK copyright jurisprudence, taking account of the ECJ's decision in Infopaq v Danske (2009). The starting point for that consideration is the principle expressed by the Court of Appeal in Higgs v R (2008), that UK courts may rely on the reasoning of Australian and other foreign decisions when the logic of those decisions makes them applicable. On its face, IceTV seems an important decision, and a likely source of future reasoning for UK ...


The Tragedy Of (Ignoring) The Information Semicommons: A Cultural Environmental Perspective, Robert Lee Cunningham 2009 The University of Western Australia

The Tragedy Of (Ignoring) The Information Semicommons: A Cultural Environmental Perspective, Robert Lee Cunningham

Robert Cunningham

The second enclosure movement critique is familiar theoretical territory for scholars concerned with the creeping maximalist impulse of Intellectual Property Rights (IPRs). Just as the first enclosure movement relating to real property created controversies concerning social contract and the advertised efficiencies of private real property, so too these concerns are echoed within the context of IPRs. This paper employs the emergent discourse of cultural environmentalism so as to diagnose and resolve IPR issues evident within the information environment. Cultural environmentalism borrows, begs and steals analytical frameworks from environmentalism, such as those relating to the commons, public choice theory, welfare economics ...


Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman 2009 Chicago-Kent College of Law

Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman

Christopher J. Buccafusco

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions ...


In Search Of (Maintaining) The Truth: The Use Of Copyright Law By Religious Organizations, David Simon 2009 Chicago-Kent College of Law

In Search Of (Maintaining) The Truth: The Use Of Copyright Law By Religious Organizations, David Simon

David Simon

Individuals often view copyright law as a tool authors or media conglomerates use to advance their interests. But other entities also use copyright law to benefit themselves. One such entity, upon which this Article focuses, is the religious organization. While religion organizations employ copyright law for a number of reasons, they have two primary motivations for doing so: to censor others and to preserve the purity of their religion’s doctrine. These two motivations steer religious groups into court where their objectives meet the limits of copyright law head on.

Before reaching the issues that arise in court, however, this ...


Impact Of The Australia-Us Free Trade Agreement On Australian Medicines Regulation And Prices, Thomas A. Faunce, James Bai, Duy Nguyen 2009 Australian National University

Impact Of The Australia-Us Free Trade Agreement On Australian Medicines Regulation And Prices, Thomas A. Faunce, James Bai, Duy Nguyen

Thomas A Faunce

The Australia – United States Free Trade Agreement (AUSFTA) came into force on 1 January 2005. Before and subsequently to the AUSFTA being concluded, controversy surrounded the debate over its impact on Australia ’ s health policy, specifically on regulation of pharmaceutical patents and Australia ’ s cost-effectiveness system relating to prescription medicine prices known as the Pharmaceutical Benefits Scheme (PBS). This article examines the expectations of both parties in the pharmaceutical sector with regard to the AUSFTA, as well as how successfully they were achieved. It seeks to analyse important relevant outcomes for regulators, the public and pharmaceutical industry, as well as ...


High-Stakes Sleuthing - What You Should Know About Protecting Your Trade Secrets, Matthew P. Allen 2009 Miller, Canfield, Paddock and Stone, PLC

High-Stakes Sleuthing - What You Should Know About Protecting Your Trade Secrets, Matthew P. Allen

Matthew P. Allen

No abstract provided.


An Interpretive Framework For Narrower Immunity Under Section 230 Of The Communications Decency Act, Gregory M. Dickinson 2009 Harvard Law School

An Interpretive Framework For Narrower Immunity Under Section 230 Of The Communications Decency Act, Gregory M. Dickinson

Gregory M Dickinson

Almost all courts to interpret Section 230 of the Communications Decency Act have construed its ambiguously worded immunity provision broadly, shielding Internet intermediaries from tort liability so long as they are not the literal authors of offensive content. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortious conduct.

This analysis, which examines the text and history of Section 230 in light of two strains of pre-Internet vicarious liability defamation doctrine, concludes that the immunity provision of Section 230, though ...


Enhancement Of Protection Of Geographical Indications, Dharmendra Chatur 2009 Christ University School of Law

Enhancement Of Protection Of Geographical Indications, Dharmendra Chatur

Dharmendra Chatur

Should the additional protection granted to Wines and Spirits under TRIPS be guaranteed to all other Geographical Indications?


Patent Challenges And Royalty Inflation, Michael Risch 2009 Villanova University School of Law

Patent Challenges And Royalty Inflation, Michael Risch

Michael Risch

Eliminating bad patents is supposed to be a good thing, and so federal law allows any interested party to challenge a patent's validity almost any time. But the law goes a step further than merely conferring broad challenge rights. It also makes them nearly impossible to contract away. Instead, federal law voids any agreement not to challenge a patent. While a contract ordinarily signifies a final resolution of all issues covered by its terms, no such peace exists in patent licensing. This inalienability of patent challenge rights comes at a cost, a cost borne by many patent licensees and ...


Reinventing Usefulness, Michael Risch 2009 Villanova University School of Law

Reinventing Usefulness, Michael Risch

Michael Risch

Patent law includes one of this country’s oldest continuous statutory requirements: since 1790, and without variance, inventors are only entitled to patent “new and useful” inventions. While “newness” receives constant attention and debate, usefulness has been largely ignored. Usefulness has transformed into the toothless and misunderstood “utility” doctrine, which requires that patents only have a bare minimum potential for use. This article seeks to reinvent patentable usefulness. It is the first comprehensive look at usefulness and it reasons that a core benefit of the requirement is to aid in the commercialization of inventions. The article then proposes two ways ...


A Brief Defense Of The Written Description Requirement, Michael Risch 2009 Villanova University School of Law

A Brief Defense Of The Written Description Requirement, Michael Risch

Michael Risch

This essay provides a brief defense of the much maligned "written description" requirement in patent law. Many argue that there is no such requirement, and that a patent specification that enables a person having ordinary skill in the art (the PHOSITA) to make and use the invention is sufficient, even if the specification contains no description of the invention. This essay briefly describes the dispute, and then raises an important but under-theorized argument in favor of a separate written description requirement. The essay accepts the persuasive grammatical reading of the statute proposed by opponents of a separate written description requirement ...


Trade Secret Law And Information Development Incentives, Michael Risch 2009 Villanova University School of Law

Trade Secret Law And Information Development Incentives, Michael Risch

Michael Risch

Trade secrets differ from other forms of intellectual property in many subtle ways that affect incentives to invest in information development. These differences relate not only to the types of information protected, but also to the requirements one must meet to protect that type of information. The various divergences and intersections of trade secret laws with other intellectual property laws lead to differences in the amount and types of investments companies make in developing information. This chapter explores five types of differential incentives associated with trade secret law: - Trade secret law v. no trade secret law - Trade secret law v ...


Introduction, Symposium, Internet Expression In The 21st Century: Where Technology & Law Collide, Tonya M. Evans, Michael R. Dimino, Nicole M. Santo 2009 Widener University - Harrisburg Campus

Introduction, Symposium, Internet Expression In The 21st Century: Where Technology & Law Collide, Tonya M. Evans, Michael R. Dimino, Nicole M. Santo

Tonya M. Evans

No abstract provided.


Towards An Intellectual Property Bargaining Theory: The Post-Wto Era, Daniel Benoliel, Bruno Meyerhof Salama 2009 Selected Works

Towards An Intellectual Property Bargaining Theory: The Post-Wto Era, Daniel Benoliel, Bruno Meyerhof Salama

Bruno Meyerhof Salama

This article proposes a positive bargaining theory for intellectual property-based technologies in the post-WTO era. It focuses on negotiations between patent-sensitive industries and developing countries over legal endowments and access conditions in an archetypical patent-sensitive industry, namely the pharmaceutical industry. The ability on the part of developing countries to issue, or threaten to issue, compulsory licenses over pharmaceutical products serves as a working example. The article's analysis of the bargaining power possessed by developing countries combines a conventional assessment of market size with a qualitative analysis that highlights the effects of these countries' propensity to innovate. The ensuing bargaining ...


Pharmaceutical Patent Bargains: The Brazilian Experience, Bruno Meyerhof Salama, Daniel Benoliel 2009 FGV Law School in Sao Paulo

Pharmaceutical Patent Bargains: The Brazilian Experience, Bruno Meyerhof Salama, Daniel Benoliel

Bruno Meyerhof Salama

In the backdrop of the strict patent regime flatly adopted by the World Trade Organization (WTO) for all countries, a few countries constantly challenge this system through aggressive patent bargains. Within the pharmaceutical sector, noticeably, some countries now threaten to issue or otherwise actually issue compulsory licenses that may sway large pharmaceutical companies into selling drugs with large discounts or into granting voluntary licenses domestically. That is conspicuously the negotiation strategy adopted by Brazil in its negotiations with big international pharmaceutical companies. This paper explains Brazil’s aggressive bargaining approach based on an analysis of two aspects of its political ...


Toward A Defense Of Fair Use Enablement, Joseph P. Liu 2009 Selected Works

Toward A Defense Of Fair Use Enablement, Joseph P. Liu

Joseph P. Liu

This Essay uses a personal anecdote to highlight a gap in current copyright law. Under current copyright doctrine, companies sued for direct copyright infringement are not generally able to assert the fair use arguments of their customers. Thus, for example, a photocopy shop sued for assembling course packs cannot argue that it is facilitating the fair use privileges of its student customers. This Essay argues that this approach is mistaken because it fails to take adequate account of the important role companies can play in practically enabling the fair use privileges of their customers. To fill this gap, this Essay ...


How China Succeeded In Protecting Olympic Trademarks And Why This Success Will Not Generate Immediate Improvements In Intellectual Property Protection In China, Aileen M. McGill 2009 University of Pennsylvania Law School

How China Succeeded In Protecting Olympic Trademarks And Why This Success Will Not Generate Immediate Improvements In Intellectual Property Protection In China, Aileen M. Mcgill

Aileen M McGill

After centuries of stagnant growth and international isolation, China has emerged as the fastest-growing economy in the world and one of the most important parties in international trade. This staggering growth and influx of foreign goods has led to rampant counterfeiting of brand-name goods in a society with little cultural basis for individual intellectual property rights. When Beijing was awarded the 2008 summer Olympics in 2001, the Chinese government moved quickly to prepare for this beloved international event, rallying this massive country for, what many considered to be their grand emergence onto the world stage. One of the reforms enacted ...


Unbranding, Confusion & Deception, Aaron K. Perzanowski 2009 Case Western Reserve University

Unbranding, Confusion & Deception, Aaron K. Perzanowski

Aaron K. Perzanowski

This Article addresses the phenomenon of unbranding. Unbranding occurs when a firm chooses to discontinue its use of a brand that has developed negative associations among consumers in favor of a new brand, often in hopes of escaping the consequences of inferior products or illegal activity. Companies like AIG, Blackwater, Philip Morris, and WorldComm have all employed this strategy in recent years. Unbranding represents a striking departure from branding orthodoxy, which stresses the maintenance of brand equity through the gradual evolution of a brand. After examining the factors that prompt firms to take the radical step of eliminating an established ...


Creativity And Craft, Michael J. Madison 2009 University of PIttsburgh

Creativity And Craft, Michael J. Madison

Michael J. Madison

I revisit the distinction between intangible works of authorship and tangible objects, which is a fundamental proposition of modern copyright law. I suggest that reconsidering that distinction, at least in part, may expand the range of possibilities for aligning modern copyright as an economic construct with the historical roots of copyright and with ethical claims about authorial expression. Revisiting that distinction also may provide contemporary lawyers and policymakers with a much-needed tool for managing challenges posed by digital technology.


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