Law Commons^™

100 Years Of International Ip - Reflections On Past, Present And Future, Frederick M. Abbott

Scholarly Publications

We have been asked to reflect on the past 100 years of international intellectual property law and to try to project forward about what changes might be necessary or desirable in the future. Only a science fiction writer would purport to have some idea about what things might look like a hundred years in the future, including from the standpoint of international intellectual property, so my remarks on that will be somewhat more proximate to the present.

Child-Proofing Global Public Health In Anticipation Of Emergency, Frederick M. Abbott

Scholarly Publications

No abstract provided.

Facilitating Access To Cross-Border Supplies Of Patented Pharmaceuticals: The Case Of The Covid-19 Pandemic, Frederick M. Abbott

Scholarly Publications

The COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics, and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools ('Licensing Facilities') on a global or regional, or even national basis, depending upon the degree of cooperation that maybe achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment …

Placebo Marks, Jake Linford

Scholarly Publications

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer.

A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

"You'll Lol @ This Tweet": Copyright Protection For Hashtag Gamers, Alan Lacerra

Florida State University Law Review

Hashtag games combine the fun of quick, incongruous exchanges with the work of creative expression and do so online through microblogging, predominantly (if not exclusively) on Twitter. Currently, hashtag-game participants face two main obstacles to copyright protection for their fun expressions: the expressions' brevity and Twitter's terms of service. To protect the copyrights that Internet users acquire by participating in hashtag games, courts should focus on the creativity rather than the brevity of the resulting expressions. Furthermore, Congress should amend the Digital Millennium Copyright Act (DMCA) to prevent Internet service providers, like Twitter, from encroaching on users' rights through broad …

Let International Competition Negotiations Sleep A While Longer: Focus On Tools And Capacity, Frederick M. Abbott

Scholarly Publications

No abstract provided.

Are Trademarks Ever Fanciful?, Jake Linford

Scholarly Publications

A fanciful trademark-a made-up word like Swiffer for mops or Xerox for photocopiers-is presumed to neither describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (tree) and the thing signified by the word (a large woody plant). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use and receives broader protection against infringement than other categories of trademarks.

Research into sound symbolism challenges the theory …

Datamining The Meaning(S) Of Progress, Jake Linford

Scholarly Publications

No abstract provided.

Valuing Residual Goodwill After Tradmark Forfeiture, Jake Linford

Scholarly Publications

Trademarks contribute to an efficient market by helping consumers find products they like from sources they trust. This information-transmission function of trademarks can be upset if the law fails to reflect both how trademark owners communicate through marks and how consumers understand and use them. But many of trademark law’s forfeiture mechanisms (the ways a trademark can lose protection) ignore or discount consumer perception. This failure threatens not only to increase consumer search costs and consumer confusion, but also to distort markets.

For example, trademark protection may be forfeited when the mark owner interrupts or abandons use, even though consumers …

Innovation And Reverse Payments, Ramsi A. Woodcock

Florida State University Law Review

Settlements of patent litigation between branded and generic drug makers that include a promise by the generic maker to stay out of the market, sometimes in exchange for a ‘reverse’ payment, increase the profits of drug makers at the expense of consumers. Some commentators argue that drug makers will invest these profits in innovation, ultimately making consumers better off. Drug market data suggest, however, that the resulting gains to consumers may still be insufficient to offset consumer losses from delayed access to generics. Even when innovation is taken into account, antitrust can most efficiently eliminate the risk of consumer harm …

Through The Lens Of Innovation, Mirit Eyal-Cohen

Florida State University Law Review

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of entrepreneurship. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Entrepreneurship turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviation as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Through …

Improving Technology Neutrality Through Compulsory Licensing, Jake Linford

Scholarly Publications

No abstract provided.

The Medical Liability Exemption: A Path To Affordable Pharmaceuticals, Carrie E. Rosato

Florida State University Law Review

Patent monopolies are tolerated because we believe they promote progress that benefits society. What should be done when these monopolies actually increase human suffering? Drug prices in America are fifty to eighty percent higher than the rest of the world, meaning many cannot afford drugs that will improve or even save their lives. When striking a balance between the interests of the patent holder and that of the public, it is important to bear in mind that the rewards granted to patentees are secondary to the public benefit derived from their labors. The ideal solution would come from Congress creating …

A Linguistic Justification For Protecting "Generic" Trademarks, Jake Linford

Scholarly Publications

A trademark is created when a new meaning is added to an existing word or when a new word is invented in order to identify the source of a product. This Article contends that trademark law fails in critical ways to reflect our knowledge of how words gain or lose meaning over time and how new meanings become part of the public lexicon, a phenomenon commonly referred to as semantic shift. Although trademark law traditionally turns on protecting consumers from confusing ambiguity, some of its doctrines ignore consumer perception in whole or in part. In particular, the doctrine of trademark …

Private Ordering Under Threat Of Regulation, Jake Linford

Scholarly Publications

No abstract provided.

Copyright's Mercantilist Turn, Glynn S. Lunney, Jr.

Florida State University Law Review

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its …

Work Made For Hire -- Analyzing The Multifactor Balancing Test, Ryan Vacca

Florida State University Law Review

Authorship 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, not the employee, being the author and initial copyright owner. 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, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. …

Aggregating Defendants, Greg Reilly

Florida State University Law Review

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and Bit-Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to …

Making Room For Cooperative Innovation, Liza S. Vertinsky

Florida State University Law Review

Patent law, created in response to a constitutional mandate to encourage innovation, may be discouraging important forms of cooperative innovation. Advances in technology have enabled new ways of pooling knowledge and computational capabilities, facilitating cooperation among many participants with complementary skills and motivations to collectively solve complex problems. But emerging models of cooperative innovation increasingly run into patent roadblocks.

Why might patent law sometimes thwart instead of support socially beneficial cooperative innovation? The problem lies in the tensions between the market-based incentives that patent law creates and the mechanisms that support emerging models of cooperative innovation. The complexity and cost …

The Institutional Progress Clause, Jake Linford

Scholarly Publications

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some copyright owners and special defenses to some users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a careful consideration of …

Reverse Payments, Perverse Incentives, Murat C. Mungan

Scholarly Publications

No abstract provided.

Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford

Scholarly Publications

There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.

This Article reveals how …

Economics Of The Independent Invention Defense Under Incomplete Information, Murat C. Mungan

Scholarly Publications

Patents lead to ex post deadweight loss arising from a noncompetitive market structure for the invention. Many have argued that introducing independent invention as a defense (IID) to patent infringement can increase social welfare by decreasing such deadweight loss at the price of a modest decrease in the number of inventions. This paper considers the effects of IID in a setting where R&D firms have incomplete information about their rivals. Four main results follow under incomplete information: (i) fewer things are invented under an IID regime; (ii) IID’s effects on welfare are ambiguous; (iii) IID is more likely to increase …

Richard Lillich Memorial Lecture: Nurturing A Transnational System Of Innovation, Jerome H. Reichman

Florida State University Journal of Transnational Law & Policy

No abstract provided.

How Federal Circuit Judges Vote In Patent Validity Cases, John R. Allison, Mark A. Lemley

Florida State University Law Review

No abstract provided.

China's Copyright Law And The Trips Agreement, Reiko R. Feaver

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The North American Free Trade Agreement & Protection Of Intellectual Property: A Converging View, Lori M. Berg

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Public Records Act: Should Trade Secrets Remain In The Sunshine?, Patricia E. Chamberlain

Florida State University Law Review

No abstract provided.

What's The Big Idea Behind The Idea-Expression Dichotomy? -- Modern Ramifications Of The Tree Of Porphyry In Copyright Law, Amaury Cruz

Florida State University Law Review

No abstract provided.

The "Arising Under" Jurisdiction Of The Federal Circuit: An Opportunity For Uniformity In Patent Law, Emmette F. Hale, Iii

Florida State University Law Review

No abstract provided.