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Holding Up And Holding Out, Colleen V. Chien 2015 Santa Clara University

Holding Up And Holding Out, Colleen V. Chien

Michigan Telecommunications and Technology Law Review

Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it is most vulnerable—after it has implemented a technology—and is able wrest a settlement because it is too late for the company to change course. Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises, and the ex ante assertion of technology patents whether in the smartphone war, standards, or patent ...


After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough 2015 University of Michigan

After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough

Michigan Telecommunications and Technology Law Review

35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the ...


A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary LaFrance 2015 William S. Boyd School of Law, UNLV

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications and Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a ...


District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji 2015 University of Michigan

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications and Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that ...


Dilution At The Patent And Trademark Office, Jeremy N. Sheff 2015 St. John's University

Dilution At The Patent And Trademark Office, Jeremy N. Sheff

Michigan Telecommunications and Technology Law Review

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to ...


Private Value Determinations And The Potential Effect On The Future Of Research And Development, Amy L. Landers 2015 Drexel University School of Law

Private Value Determinations And The Potential Effect On The Future Of Research And Development, Amy L. Landers

Amy L. Landers

Although the promise of an emerging patent market is thought to provide future benefits to invention, innovation, and the public, this essay examines the possibility that the aggregate influence of this activity could instead destabilize patent values in a manner that mirrors the "bubble" phenomenon that occurred in certain markets in the past. To the extent that this occurs, this would destabilize the patent system and might have negative consequences for the future of investment in research, development and innovation.


Campbell At 21/Sony At 31, Jessica Litman 2015 University of Michigan

Campbell At 21/Sony At 31, Jessica Litman

Jessica Litman

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly 40 years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting ...


Restoring The Fact/Law Distinction In Patent Claim Construction, J. Jonas Anderson, Peter S. Menell 2015 Northwestern University School of Law

Restoring The Fact/Law Distinction In Patent Claim Construction, J. Jonas Anderson, Peter S. Menell

NULR Online

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” 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 1791, the Court turned to “the relative interpretive skills of ...


Ninth Circuit Nine-Plus -- Settling The Law In Internet Keyword Advertising And Trademark Use, Andrew Leahey 2015 Rutgers University - Camden

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

Andrew Leahey

No abstract provided.


[Un]Happy Together: Why The Supremacy Clause Preempts State Law Digital Performance Rights In Radio-Like Streaming Of Pre-1972 Sound Recordings, Julie L. Ross 2015 Georgetown University Law Center

[Un]Happy Together: Why The Supremacy Clause Preempts State Law Digital Performance Rights In Radio-Like Streaming Of Pre-1972 Sound Recordings, Julie L. Ross

Georgetown Law Faculty Publications and Other Works

Lovers of the music of Frank Sinatra, The Beatles, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws ...


The Irrelevance Of Nanotechnology Patents, Emily Michiko Morris 2015 Indiana University School of Law - Indianapolis

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 ...


Victor Can Keep His Little Secret Unless Victoria's Secret Is Actually Harmed, Shafeek Seddiq 2015 Touro College Jacob D. Fuchsberg Law Center

Victor Can Keep His Little Secret Unless Victoria's Secret Is Actually Harmed, Shafeek Seddiq

Touro Law Review

No abstract provided.


Information Technology And The Law - Copyright In Cyberspace, Ulf Maunsbach 2015 Lund University, Faculty of Law

Information Technology And The Law - Copyright In Cyberspace, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.


Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell 2015 SelectedWorks

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 ...


From The Unforeseeability Exception To Foreseeability Estoppel: The Federal Circuit’S Effort To Limit The Doctrine Of Equivalents, Ping-Hsun Chen 2015 National Chengchi University

From The Unforeseeability Exception To Foreseeability Estoppel: The Federal Circuit’S Effort To Limit The Doctrine Of Equivalents, Ping-Hsun Chen

Ping-Hsun Chen

A person can infringe a patent under the doctrine of equivalents (“DOE”) which may be limited by prosecution history estoppel (“PHE”). The Supreme Court in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), finalized the basic doctrine of PHE in the context of claim amendment. A narrowing amendment of a claim results in a presumption that a patentee has surrendered the scope between the original claim and amended claim, but the patentee is allowed to rebut the presumption by proving any of three exceptions. Among those exceptions is the “unforeseeable” exception under which a patentee ...


No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley 2015 American University Washington College of Law

No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley

IP Theory

Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead ...


Living Gardens, Living Art, Living Tradition, Roberta R. Kwall 2015 DePaul University College of Law

Living Gardens, Living Art, Living Tradition, Roberta R. Kwall

IP Theory

Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such ...


Commentary: Revisiting The Derivative Works Exception Of The Copyright Act Thirty Years After Mills Music, Robert S. Meitus 2015 IU Maurer School of Law

Commentary: Revisiting The Derivative Works Exception Of The Copyright Act Thirty Years After Mills Music, Robert S. Meitus

IP Theory

No abstract provided.


Copyright And Cross-Cultural Borrowing: Indo-Western Musical Encounters, Arpan Banerjee 2015 Jindal Global Law School, India

Copyright And Cross-Cultural Borrowing: Indo-Western Musical Encounters, Arpan Banerjee

IP Theory

This article traces the history of how Western rock musicians and hip-hop musicians, separated by many decades, have borrowed elements from Indian music. Conversely, the article also discusses how Indian film music composers have frequently, and rather blatantly, copied Western melodies. While cross-cultural borrowing raises complex socio-political questions, this article focuses on some practical legal questions that arise from such borrowing. The article discusses lawsuits filed by artists in India and the United States — from a much-publicized lawsuit against Dr. Dre by the Indian film music composer Bappi Lahiri, to a more recent lawsuit against another Indian film composer by ...


Andy Warhol’S Pantry, Brian L. Frye 2015 University of Kentucky College of Law

Andy Warhol’S Pantry, Brian L. Frye

Law Faculty Scholarly Articles

This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should in-corporate a “Warhol test.”


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