Law Commons^™

Brief For The Coalition Against Patent Abuse As Amicus Curiae In Support No Party, Charles Duan

Amicus Briefs

Perhaps unexpectedly, a case on the constitutionality of the Patent Trial and Appeal Board has major significance to the pressing policy crisis of drug prices in the United States. Erroneously issued patents monopolize medical therapies, making them unaffordable or inaccessible to numerous Americans. The inter partes review proceedings that the Board conducts have repeatedly and successfully overcome such patents, enabling competition and dramatically lowering prices. This Court should ensure the continued viability of the Board and of inter partes review, by preserving the Board’s objectivity and independence from executive branch political influence.

"Fair Use" Through Fundamental Rights In Europe: When Freedom Of Artistic Expression Allows Creative Appropriations And Opens Up Statutory Copyright Limitations, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, …

Who's Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crisis, Charles Duan, Christopher J. Morten

Articles in Law Reviews & Other Academic Journals

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict--indeed, have already begun to conflict--with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government paid compensation under 28 U. S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought …

The Domestic Effect Of South Africa's Treaty Obligations: The Right To Education And The Copyright Amendment Bill, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

On 16 June 2020, the President of South Africa returned the Copyright Amendment Bill [B-13 of 2017] to Parliament, expressing reservations regarding its constitutionality and compliance with international law. In this paper, I describe the constitutional implications of compliance with international law and the binding international obligations incumbent upon South Africa in respect of copyright and international human rights law. In doing so, I argue that the Bill of Rights acts as a magnet, compelling all organs of state to give greater normative weight to those international obligations that map onto the Bill of Rights as compared to those …

"An Hundred Stories In Ten Days": Covid-19 Lessons For Culture, Learning And Copyright Law, Carys J. Craig, Bob Tarantino

Joint PIJIP/TLS Research Paper Series

In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of …

Covert Deception, Strategic Fraud, And The Rule Of Prohibited Intervention (Originally Published As Part Of The Hoover Institution’S Aegis Series), Gary Corn

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul Gugliuzza

Working Papers

Imagine the following advertisement popping up on Craigslist: "FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of!"That probably seems bizarre. Still — and startlingly — it accurately portrays what’s happening right now in the Western District of Texas. One judge, appointed to the court less than …

Analysis Of Woods And Myburgh Comments On Cab, Jonathan Band

Joint PIJIP/TLS Research Paper Series

On June 16, 2020, President Ramaphosa of the South African Republic referred the Copyright Amendment Bill (“CAB”) back to the National Assembly on the grounds that he had reservations concerning its constitutionality. In his referral letter, President Ramaphosa stated that the CAB may be in conflict with international intellectual property (IP) treaties South Africa had joined or was planning to join. CAB opponents’ arguments that the CAB is incompatible with IP treaties are based largely on comments prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization, in 2018. Woods prepared these comments as …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, Congress has considered legislation to amend§ 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court's precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway with a subcommittee of the Senate holding numerous roundtables and hearings on the subject.

This article considers some less-discussed consequences of that draft legislative proposal. The legislation likely opens the door to patenting of subject …

Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan

Joint PIJIP/TLS Research Paper Series

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the …

What Role Can Regulations Play? A South African Public Law Perspective On The Potential Response Through Regulations To Constitutional Reservations About The Copyright Amendment Bill, B-13b Of 2017, Jonathan Klaaren

Joint PIJIP/TLS Research Paper Series

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

After a background section …

Kenya’S Intellectual Property Bill, 2020, And Its Shortcomings In Adopting All Lawful Trips Public Health Flexibilities, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

Given the importance of access to medicines to human rights and well-being in Kenya, it is appropriate to analyze whether Kenya has currently incorporated the allowed public health flexibilities to the greatest extent possible in its draft Intellectual Property Bill, 2020. This analysis will focus on the patent, utility model, and enforcement measures only as they are the ones directly relevant to access to medicines and other health technologies. The analysis starts with the premise that Kenya wishes to avoid granting unwarranted patents on unworthy inventions, especially with respect to medicines and other health technologies. In particular, the assumption is …

Of Monopolies And Monocultures: The Intersection Of Patents And National Security, Charles Duan

Articles in Law Reviews & Other Academic Journals

It was certainly an odd thing for the Department of Justice attorney arguing for the United States to appear before the Ninth Circuit to tell the appellate judges that a federal agency was wrong. This was what happened in a Federal Trade Commission enforcement action against Qualcomm Inc., a semiconductor technology company. As a substantial holder of patents on mobile communications technologies and also a leading manufacturer of chips used in that same industry, the FTC charged Qualcomm with anticompetitive conduct; the district court agreed and enjoined Qualcomm from certain patent licensing practices. It was that award of injunctive relief …

Guest Post Out Of The Blue The Federal Circuit Devises A New Rule For Color Mark, Christine Farley

Editorial Contributions

The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that “a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, therefore, can be inherently distinctive.”URL: https://patentlyo.com/patent/2020/04/federal-circuit-devises.html

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Crash Goes Icann's Multistakeholder Model, Kathryn Kleiman

Articles in Law Reviews & Other Academic Journals

In 1995, the Internet was becoming a global phenomenon and users needed "domain names"--the street signs of Internet addresses--for an array of commercial and noncommercial speech. A small community of "multistakeholders"--business, civil society, governments, technologists, intellectual property and non-government organization representations--began to write rules for Internet addresses largely on behalf of a global population that had yet to be connected to the Internet. I had the privilege of being part of that group. Since then, Internet use has skyrocketed from 70 million users (1.7% of the world population) in 1995 to over 4.5 billion users (58.8% of the world population) …

Wipo Conversation On Intellectual Property (Ip) And Artificial Intelligence (Ai), Sean Flynn

Working Papers

No abstract provided.

Brief Fof The R Street Institutte, Public Knowledge, And The Niskanen Center As Amici Curiae In Support Of Petitioner, Charles Duan, Meredith F. Rose

Amicus Briefs

The Java SE declarations of this case are simply a language of commands. As an application programming interface, or API, they exhibit features common to any language: a structured vocabulary and grammatical syntaxes, which a computer system understands as instructions to perform predefined tasks. What Oracle accuses as infringement is “reimplementation,” namely the building of a system, in this case Google’s Android platform, that repurposes the same words and syntaxes of the Java declarations.

The Lost Unfair Competition Law, Christine Farley

Articles in Law Reviews & Other Academic Journals

The accepted metaphor that trademark law is a species of the genus of unfair competition law distorts both the actual history and the relationship between the two. Tracing the development of the law reveals a related sequence of significant events, some of which have been forgotten. This back-story suggests that a particularly innovative treaty incorporated by reference into the Lanham Act was meant to be the vehicle for unfair competition protection. As a result of this lost law, unfair competition law remains an enigma today.

What Didn't Happen: An Essay In Speculation, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

Most of us held off celebrating the beginning of a renewed slow trickle of works into copyright's public domain until the first seconds of New Year's Day, 2019, but (if it hadn't been so early in the day), we would have been entitled to raise a glass at 4:04 PM on the preceding December 27th, when the last substantive business undertaken in 2018 by either house of Congress was concluded in the Senate. (Like the House, which wrapped up its business at 4:02, the World's Greatest Deliberative Body had convened that day at 4:00.) At that moment, a last-minute push …

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

Nonexcludable Surgical Method Patents, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?

The traditional answer …

Transplanting Fair Use Across The Globe: A Case Study Testing The Credibility Of U.S. Opposition, Niva Elkin-Koren, Neil Weinstock Netanel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Sea Change: The Rising Tide Of Pro Bono Legal Services For The Creative Community, Victoria Phillips

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Christophe Geiger, João Pedro Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

The Chilling Effect Of Copyright Permissions On Academic Research: The Case Of Communication Researchers, Patricia Aufderheide

Joint PIJIP/TLS Research Paper Series

Communications researchers in the U.S., who routinely analyze copyrighted material, both qualitatively and quantitatively, face challenges from strict copyright. The doctrine of fair use permits some unpermissioned use of copyrighted works. Survey research shows that researchers routinely need access to copyrighted material; that they are often unsure or confused, even unknowing, about fair use; and that this lack of knowledge and/or familiarity leads to both failure to execute and failure to initiate, or “imagination foregone.” Creating a best practices code has improved knowledge but more institutional change is needed for knowledge to inform action.