Digital Commons Network^™

Comments On India's Draft National Ipr Policy, Srividhya Ragavan, Brook Baker, Sean Flynn

Srividhya Ragavan

No abstract provided.

Prices Versus Prizes: Patents, Public Policy And The Market For Inventions, Daniel F. Spulber

Daniel F Spulber

The article argues that market prices provide far better incentives for invention and innovation than do government prizes. The question of prices versus prizes is important because the America COMPETES Reauthorization Act of 2010 has established a framework for government prizes. The article finds fundamental flaws in the deadweight welfare loss arguments for replacing market prices with government prizes. The article examines public prizes in comparison to the market for inventions in terms of efficiency in the allocation of inventions. The discussion shows how, in contrast to public prizes, prices in the market for inventions provide guidance for investment in …

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 …

Prerogative, Nationalized: The Social Formation Of Intellectual Property, Laura R. Ford

Laura R Ford

In this article, I offer a “social formation story” (Hirschman & Reed) of the emergence of intellectual property, as a new type of legal property in England. I treat the history of patents and copyrights together, and focus especially on the Constitutional transformations of the Sixteenth and Seventeenth Centuries that enabled this new, “intellectual” form of property to finally emerge in the Eighteenth Century. I open and conclude with the cases of Millar v. Taylor (King’s Bench 1769) and Donaldson v. Becket (House of Lords 1774), viewing these as the first cases in which the status of this new type …

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 …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …

The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah W. Brennan

Hannah W Brennan

The United States spends nearly $1,000 per person annually on drugs—40 percent more than the next highest spender, Canada, and more than twice the amount France and Germany spend. Although myriad factors contribute to high drug spending in the United States, the crucial role that intellectual property laws play in inhibiting access to cheaper, generic medications is among one of the best documented. Yet, for the most part, the discussion of the relationship between intellectual property law and drug spending has centered on patent protection. Recently, however, a few researchers have turned their attention to a different exclusivity—trademark law. New …

Bowman V. Monsanto: A Bellwether For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement, Christopher M. Holman

Christopher M Holman

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies, for example by denying patent rights to “second generation” self-replicating products, or even by broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, the courts and/or Congress have at their …

Sustainable Cybersecurity: Applying Lessons From The Green Movement To Managing Cyber Attacks, Scott J. Shackelford, Tim Fort

Scott Shackelford

According to Frank Montoya, the U.S. National Counterintelligence Chief, “We’re an information-based society now. Information is everything. That makes . . . company executives, the front line – not the support mechanism, the front line – in [determining] what comes.”[1] Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more …

Making A Mark: Taking A Glance At Trademarks And Graphic Infringement, Heather S. Ray

Heather S Ray

No abstract provided.

Transformative Teaching And Educational Fair Use After Georgia State, Brandon C. Butler

Brandon C. Butler

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to first amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State e-reserves case, may be the last …

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 …

A Unified Framework For Rand And Other Reasonable Royalties, Richard J. Gilbert, Jorge L. Contreras

Richard J Gilbert

The framework for calculating “reasonable royalty” patent damages has evolved over the years to a point at which, today, it is viewed by many commentators as potentially misleading and untethered from its original purpose. We offer a proposal to modify the framework for determining reasonable patent royalties that is based on recent scholarly and judicial analyses of standards-essential patents that are subject to commitments to license on terms that are reasonable and non-discriminatory (RAND).

Many standard setting organizations require owners of patents that are essential to a standard to license those patents on RAND terms, but typically offer little specific …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Ryan G. Vacca

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson

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

Srividhya Ragavan

No abstract provided.

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 …

Essential Facilities Doctrine And China’S Anti-Monopoly Law, Yong Huang, Elizabeth Xiao-Ru Wang, Xin Roger Zhang

Elizabeth Xiao-Ru Wang

No abstract provided.

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

Srividhya Ragavan

No abstract provided.

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

“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 "Progress Clause": An Empirical Analysis Based On The Constitutional Foundation Of Patent Law, Lori Andrews

Lori B. Andrews

The Fashion Lottery: Cooperative Innovation In Stochastic Markets, Jonathan Barnett, Gilles Grolleau, Sana El Harbi

Jonathan M Barnett

The fashion market is an anomaly: innovation is vigorous but original producers are substantially unprotected against imitation, which proliferates under an incomplete property regime consisting of strong trademark protections and weak design protections. We account for this anomaly through a “cooperative innovation” model where producers prefer an incomplete property regime that permits some imitation to alternative regimes that permit no imitation or all imitation, independent of budget constraints. A property regime that permits positive but limited levels of imitation operates as a form of group insurance that alleviates the risk of recoupment failure in a market characterized by demand uncertainty, …

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 …