Intellectual Property Law | Open Access Articles

Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman

Christopher B. Seaman

This is an introduction to a Roundtable on the Defend Trade Secrets Act published by the Washington and Lee Law Review Online in 2015.

Go to article

Introduction À Quelques Aspects Du Droit Américain, W. Gregory Voss

W. Gregory Voss

This is an introduction (in French) to my contributions on U.S. law for the workshop -- "Les défis du numérique dans l'entreprise en Europe" ("The Challenges of Digital Technologies in Europe") held at the Toulouse Business School on February 27, 2015. One of my contributions, which is unpublished -- "Les conditions générales d’utilisation des sites web soumis au droit américain et quelques protections pour les consommateurs" -- is available on this website. Another -- "Les données personnelles dans l'entreprise vues au travers du prisme du droit américain" -- was published in the October 2015 issue of the Revue Lamy Droit …

Go to article

Copyright Porn Trolls, Wasting Taxi Medallions, And The Propriety Of ‘Property’, Tom W. Bell

Tom W. Bell

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing …

Go to article

Patentable Subject Matter As A Policy Lever, Amy L. Landers

Amy L. Landers

Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term “invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are …

Go to article

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.

Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in …

Go to article

Road To Failure Is Paved With Good Excuses: Calls (Again) To Repeal S 51(3) Of The Competition And Consumer Act 2010, Tyrone Berger

Dr Tyrone Berger

From the outset of the Commonwealth Government announcing a ‘root and branch’ review into Australia’s competition policy on 4 December 2013 (‘Harper Review’), many observers were left with little doubt that the ‘IP exception’ under s 51(3) of the Competition and Consumer Act 2010 (Cth) (CCA) would come under attack again. The concern (now and past) for the Government is acheving a balance between the granting of IP rights, which seek to increase incentives for R&D investment, and curbing any anti-competitive effects arising from increased market power. Encouraging firms to innovate is normally seen as an underlying justification of IP …

Go to article

Patenting Physibles: A Fresh Perspective For Claiming 3d-Printable Products, Daniel Harris Brean

Daniel Harris Brean

To successfully combat patent infringement, it is necessary to have an effective way to extinguish infringement at the source. In the case of 3D printing, this means being able to enforce one’s patent against those who are selling or distributing the printable CAD files. But the law does not currently provide patent protection for CAD files. Because this severely limits the enforceability of patents in the emerging 3D printing space, it discourages innovation and needs to be remedied.

Beauregard claims are perhaps the best existing option for patents that might encompass CAD files, but Beauregard claims are still largely ineffective …

Go to article

Ending Unreasonable Royalties: Why Nominal Damages Are Adequate To Compensate Patent Assertion Entities For Infringement, Daniel Harris Brean

Daniel Harris Brean

According to Section 284 of the Patent Act, damages for patent infringement are supposed to be compensatory. The statute only allows for recovery of "damages adequate to compensate for the infringement." Even though it qualifies that such damages must be "in no event less than a reasonable royalty," this language cannot be read to avoid the fundamental requirement that, as compensatory damages, any recovery must stem from actual harm suffered by the patent owner. Absent proof of actual harm, only nominal damages should be recoverable. Yet patentees who suffer no actual harm are regularly obtaining considerable amounts of money from …

Go to article

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Go to article

Living With Monsanto, 2015 Mich. St. L. Rev. 559 (2015), Daryl Lim

Daryl Lim

Bowman v. Monsanto Co. signaled the end of an era of seed saving. Farmers must buy new seed for replanting or risk patent infringement. The familiar rhetoric of oppressed farmers belies the fact that Monsanto’s success rests in part on farmers prizing its innovations. Current trends indicate that this reliance on Monsanto will continue. The Supreme Court correctly found for Monsanto. However, future cases must iron out the kinks in the Bowman decision. Despite the Court’s best intentions, inadvertence cannot shield farmers from patent infringement. The Court must also make it clear that patentees cannot use licensing restrictions to claw …

Go to article

Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.

Go to article

Patent Conflicts, Tejas N. Narechania

Tejas N. Narechania

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders can shape the patent regime. Indeed, a variety of administrative actors influence patent policy through the exercise of their regulatory authority and administrative power.

This Article offers a novel description of the ways in which nonpatent agencies intervene into patent policy. In particular, it examines agency responses to conflicts between patent and other regulatory aims, uncovering a relative preference for …

Go to article

Abriendo Caminos: Acceso A La Cultura, Educación A Distancia Y Digitalización De Obras En Los Límites Y Excepciones A Los Derechos De Autor, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

Go to article

Corporate "Human Rights" To Intellectual Property Protection, J. Janewa Osei Tutu

J. Janewa Osei-Tutu

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major …

Go to article

Copyright And Ownership Of Fan Created Works: Fanfiction And Beyond, Raizel Liebler

Raizel Liebler

This chapter draws parallels across fictional genres, historical periods, and national legal and cultural traditions, to explore the relationship between popular forms of copyright protected fiction and the diverse forms of fan fiction that develop in relation to such works. Whilst fans of various fictional works revere the authors whose works they like, this reverence often takes the form of a kind of guardianship or that does not directly conform with authorial/ corporate conceptions of copyright control. Fans are not passive recipients of content, but active in their engagement with it. Often this involves creative copies, extensions and revisions.

While …

Go to article

Trolls Or Toll-Takers: Do Intellectual Property Non-Practicing Entities Add Value To Society?, Samuel F. Ernst

Samuel F Ernst

There are few areas of patent law more contentious than the dispute over the social utility of “non-practicing entities,” or (if you will excuse the expression) “patent trolls.” Whether non-practicing entities add value to society is a topic of much debate, and the focus of the 2015 Chapman Law Review Symposium.

Go to article

Empirical Studies Of Claim Construction, Jonas Anderson

J. Jonas Anderson

Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Patent prosecutors devote substantial effort to crafting patent claims so as to maximize the scope of their right without “reading on” prior art (and thereby defeating novelty). Businesses seeking to enter a technology marketplace must be careful to avoid encroaching patent claims. Thus, when patentees enforce their rights, the interpretation of claim boundaries guides both validity and infringement analysis. Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, …

Go to article

Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson

J. Jonas Anderson

INTRODUCTION: Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments1 by ruling that "the construction of a patent, including terms of art within its claim, is exclusively within the province of the court."'2 In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 179 1,' the Court turned to "the relative interpretive …

Go to article

Revealing Originality Of Song Works: An Analysis To The Copyright Law, Desrezka Gunti Larasati

Indonesia Law Review

The topic of this paper is to describe the defining criteria of originality of song works. The aspect of originality is important to make such work be protected by Copyright Law. In this research, the criteria to define originality are based on certain doctrines and/or theories of originality that may vary case by case. The use of such doctrines and/or theories are necessary, since the stipulations regarding originality in the Indonesian Copyright Act has not been considered suffice. With regard to the song works, the criteria of originality may be different from other works. Therefore, a comprehensive research on the …

Go to article

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 …

Go to article

All Articles in Intellectual Property Law

Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman

Christopher B. Seaman

Introduction À Quelques Aspects Du Droit Américain, W. Gregory Voss

W. Gregory Voss

Copyright Porn Trolls, Wasting Taxi Medallions, And The Propriety Of ‘Property’, Tom W. Bell

Tom W. Bell

Patentable Subject Matter As A Policy Lever, Amy L. Landers

Amy L. Landers

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

Road To Failure Is Paved With Good Excuses: Calls (Again) To Repeal S 51(3) Of The Competition And Consumer Act 2010, Tyrone Berger

Dr Tyrone Berger

Patenting Physibles: A Fresh Perspective For Claiming 3d-Printable Products, Daniel Harris Brean

Daniel Harris Brean

Ending Unreasonable Royalties: Why Nominal Damages Are Adequate To Compensate Patent Assertion Entities For Infringement, Daniel Harris Brean

Daniel Harris Brean

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson

Living With Monsanto, 2015 Mich. St. L. Rev. 559 (2015), Daryl Lim

Daryl Lim

Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan

Srividhya Ragavan

Patent Conflicts, Tejas N. Narechania

Tejas N. Narechania

Abriendo Caminos: Acceso A La Cultura, Educación A Distancia Y Digitalización De Obras En Los Límites Y Excepciones A Los Derechos De Autor, Javier André Murillo Chávez

Javier André Murillo Chávez

Corporate "Human Rights" To Intellectual Property Protection, J. Janewa Osei Tutu

J. Janewa Osei-Tutu

Copyright And Ownership Of Fan Created Works: Fanfiction And Beyond, Raizel Liebler

Raizel Liebler

Trolls Or Toll-Takers: Do Intellectual Property Non-Practicing Entities Add Value To Society?, Samuel F. Ernst

Samuel F Ernst

Empirical Studies Of Claim Construction, Jonas Anderson

J. Jonas Anderson

Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson

J. Jonas Anderson

Revealing Originality Of Song Works: An Analysis To The Copyright Law, Desrezka Gunti Larasati

Indonesia Law Review

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

Matthew Rimmer

Popular Institutions

Featured Publications

Popular Authors