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Full-Text Articles in Law
Prior Art In The District Court, Stephen Yelderman
Prior Art In The District Court, Stephen Yelderman
Notre Dame Law Review
This Article is an empirical study of the evidence district courts rely upon when invalidating patents. To construct our dataset, we collected every district court ruling, verdict form, and opinion (whether reported or unreported) invalidating a patent claim over a six-and-a-half-year period. We then coded individual invalidity rulings based on the prior art supporting the court’s decision, observing 3320 invalidation events relying on 817 distinct prior art references.
The nature of the prior art relied upon to invalidate patents is relevant to two distinct sets of policy questions. First, this data sheds light on the value of district court litigation …
Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola
Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola
Notre Dame Law Review
Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …
Patent Litigators Playing Cowboys And Indians At The Ptab, Michael E. Benson
Patent Litigators Playing Cowboys And Indians At The Ptab, Michael E. Benson
Notre Dame Law Review Reflection
This Essay concerns a new frontier of crafty strategy to keep patents from review by the Patent Trial and Appeal Board (PTAB)—the invocation of tribal sovereign immunity to prevent the PTAB from obtaining (subject-matter) jurisdiction over the patent invalidity dispute.
Part I of this Essay provides background information about a current case in which the litigant has attempted to use tribal sovereign immunity in order to avoid an inter partes review (IPR) proceeding before the PTAB. Part II provides a brief summary of the current relevant law (tribal, patent, administrative, etc.) pertaining to tribal sovereign immunity in the context of …
Clown Eggs, David Fagundes, Aaron Perzanowski
Clown Eggs, David Fagundes, Aaron Perzanowski
Notre Dame Law Review
Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby …
Why Do Startups Use Trade Secrets?, David S. Levine, Ted Sichelman
Why Do Startups Use Trade Secrets?, David S. Levine, Ted Sichelman
Notre Dame Law Review
Empirical studies of the use of trade secrecy are scant, and those focusing on startups, nonexistent. In this Article, we present the first set of data—drawn from the Berkeley Patent Survey—on the use of trade secrets by U.S. startup companies in the software, biotechnology, medical device, and hardware industries. Specifically, we report on the prevalence of trade secrecy usage among startups. Additionally, we assess the importance of trade secrets in relation to other forms of intellectual property protection and barriers to entry, such as patents, copyrights, firstmover advantage, and complementary assets. We segment these results by a variety of factors, …