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Articles 1 - 8 of 8
Full-Text Articles in Law
The Patentability Of Genetic Therapies: Car-T And Medical Treatment Exclusions Around The World, Luis Gil Abinader, Jorge L. Contreras
The Patentability Of Genetic Therapies: Car-T And Medical Treatment Exclusions Around The World, Luis Gil Abinader, Jorge L. Contreras
Utah Law Faculty Scholarship
More than eighty countries, including the members of the European Patent Convention, the United States, Canada, New Zealand, China, Japan, and India, currently exclude or limit the patentability of methods of medical treatment. CAR-T and other recent gene and cell therapies, which operate based on the extraction of genetic or cellular material from a patient, the alteration of such material, and the reintroduction of such material to the patient’s body, should, under most or all of these legal regimes, be considered medical treatments that are thus excluded from patentability, or as to which patent enforcement is limited. Accordingly, we urge …
Sui-Genericide, Jorge L. Contreras
Sui-Genericide, Jorge L. Contreras
Utah Law Faculty Scholarship
Generic terms – those that describe a general class of goods or services – are not eligible for trademark protection. Firms have historically gone to great lengths to prevent their trademarks from becoming generic – a fate often referred to as genericide. But in a few rare cases, firms have voluntarily declared certain terms that they have created to be generic, a phenomenon that I refer to as “sui-genericide”. This article explores the little-discussed phenomenon of sui-genericide, both its origins in government-sponsored programs of the mid-twentieth century and its most recent incarnation in the area of technical interoperability standards. Though …
Making The Rules: The Governance Of Standard Development Organizations And Their Policies On Intellectual Property Rights, Justus Baron, Jorge L. Contreras, Martin Husovec, Pierre Larouche, Nikolaus Thumm
Making The Rules: The Governance Of Standard Development Organizations And Their Policies On Intellectual Property Rights, Justus Baron, Jorge L. Contreras, Martin Husovec, Pierre Larouche, Nikolaus Thumm
Utah Law Faculty Scholarship
This study provides a comprehensive analysis of the governance of standard development organizations (SDOs), with a particular emphasis on organizations developing standards for Information and Communication Technologies (ICT). The analysis is based on 17 SDO case studies, a survey of SDO stakeholders, an expert workshop, and a comprehensive review of the legal and economic literature. The study considers the external factors conditioning SDO decision making on rules and procedures, including binding legal requirements, government influence, the network of cooperative relationships with other SDOs and related organizations, and competitive forces. SDO decision-making is also shaped by internal factors, such as the …
Private Law, Conflict Of Laws, And A Lex Mercatoria Of Standards-Development Organizations, Jorge L. Contreras
Private Law, Conflict Of Laws, And A Lex Mercatoria Of Standards-Development Organizations, Jorge L. Contreras
Utah Law Faculty Scholarship
Technical standards created by industry standards-development organizations (SDOs) enable interoperability among products manufactured by different vendors. Over the years, SDOs have developed policies to reduce the risk that SDO participants holding patents covering the SDO’s standards will disrupt or hinder the development and deployment of these standards. These policies, including commitments to license standards-essential patents (SEPs) on terms that are fair, reasonable and non-discriminatory (FRAND), gain transnational application given the international character of SDO activities and are most effectively interpreted and applied on the basis of private law (contractual) principles. However, SDO policies are typically embodied in an SDO’s governing …
Understanding "Balance" Requirements For Standards-Development Organizations, Jorge L. Contreras
Understanding "Balance" Requirements For Standards-Development Organizations, Jorge L. Contreras
Utah Law Faculty Scholarship
Most technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such openness, balance of interest, consensus decision making and appeals. Yet these criteria lack a generally-accepted definition and the manner in which they are implemented varies among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders. This article explores the origins and meaning of the balance requirement for SDOs. In doing so, it identifies four “tiers” of balance requirements, ranging from those required of all SDOs under applicable antitrust law, to those required of …
Frand Royalties, Anti-Suit Injunctions And The Global Race To The Bottom In Disputes Over Standards-Essential Patents, Jorge L. Contreras
Frand Royalties, Anti-Suit Injunctions And The Global Race To The Bottom In Disputes Over Standards-Essential Patents, Jorge L. Contreras
Utah Law Faculty Scholarship
While national courts have long exercised extraterritorial authority over domestic entities whose conduct abroad is prohibited in the domestic jurisdiction, national courts have recently begun to use disputes over domestic patent rights as vehicles for shaping the global business arrangements of private parties even absent any violation of national law. This phenomenon has become particularly pronounced in the context of “fair, reasonable and non-discriminatory” (FRAND) licenses of patents that are essential to the manufacture and sale of standardized products. This essay explores the increasing extraterritorial effect of national judicial decisions on licenses for standards-essential patents, including recent instances in which …
#Squadgoals: A Response To Seth Waxman, Amelia Rinehart
#Squadgoals: A Response To Seth Waxman, Amelia Rinehart
Utah Law Faculty Scholarship
Former Solicitor General Seth Waxman’s recent remarks, framing our current age of patent law in the Supreme Court as “interesting times,” unquestionably captures the exhilaration of an active Supreme Court in this area of the law. Waxman knows his way around patent cases decided by the Supreme Court — he presented arguments in four of the six patent cases in the 2016 Term — but he also has an extensive appellate practice before the Court of Appeals for the Federal Circuit (“Federal Circuit”), which has exclusive appellate jurisdiction over patent cases. Given his substantial experience in patent appellate litigation, Waxman …
The False Promise Of Health Data Ownership, Jorge L. Contreras
The False Promise Of Health Data Ownership, Jorge L. Contreras
Utah Law Faculty Scholarship
In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …