Law Commons^™

It's Time For An American (Data Protection) Revolution, Mark Peasley

Akron Law Review

The European Union’s General Data Protection Regulation is the most comprehensive, far-reaching, and forward-thinking piece of legislation to be passed in recent history. The GDPR will set the European Union far ahead of the United States when it comes to protecting personal information, but fear not; many of the GDPR’s requirements reach across the Atlantic and will offer a trickle-down benefit to United States citizens as entities move towards compliance. However, this is only an unintended benefit of the GDPR. Currently, the United States takes a piecemeal approach to data protection that focuses on the type of information stored, which …

Blunting The Later-Mover Advantage: Intellectual Property And Knowledge Transfer, Irina D. Manta, Mattias G. Ottervik

Akron Law Review

The United States followed a path of initially giving little protection to intellectual property (IP) so that the country could benefit from the IP of nations we term earlier-movers on the world stage of economic development. This symposium piece argues that Japan and China have been following a similar trajectory in their intellectual property laws while progressing on their own economic climb. Widespread international outsourcing of manufacturing has made intellectual property a key asset for private companies, which has strengthened the tendencies of earlier-movers to formulate and enforce strict intellectual property laws. This suggests that countries like China respond not …

Ai & Ip Innovation & Creativity In An Age Of Accelerated Change, Daryl Lim

Akron Law Review

From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that “will be the defining technology of our time.” Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AI-driven 4IR. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. In the creative arts, the work for hire doctrine provides a pragmatic legal vehicle …

Venue One Year After Tc Heartland: An Early Empirical Assessment Of The Major Changes In Patent Filing, Shawn P. Miller

Akron Law Review

In its May 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court reined in the Federal Circuit’s permissive venue standard, which had fueled the rise of the Eastern District of Texas as the busiest patent trial court in the nation and the preferred filing location of patent assertion entities (PAEs), derisively known as patent trolls. While the new limits of permissible venue in patent cases continue to be demarcated in the lower courts, sufficient time has passed since TC Heartland to begin to investigate the impact of the decision across a number of dimensions. …

A Masterclass In Trademark's Descriptive Fair Use Defense, Deborah R. Gerhardt

Akron Law Review

When judges decide trademark cases, they often must balance trademark rights against interests in free expression. The defense known as “classic” or “descriptive” fair use embraces the foundational themes that make trademark conflicts so compelling. By design, the defense pits fair competition and free speech against a mark owner’s right to control its story, reputation, and values. The outcome of this tug of war may be hard to predict. It turns on consumer perception, and therefore, generally raises questions of fact. But in Mars, Inc. v. J.M. Smucker Co., this fact intensive question was decided as a matter of law. …

A Global Perspective On Digital Sampling, Loren E. Mulraine

Akron Law Review

The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the secondary user cannot take a substantial portion of the prior author’s copyrightable expression. There is no infringement without substantial similarity. By definition, a de minimis taking is the polar opposite of substantial …

Biotechnology Patent Law Top Ten Of 2018 Broad Wins, Sovereignty Loses, And Patent Dance, Kevin E. Noonan, Andrew W. Torrance

Akron Law Review

In this article, we discuss what we consider to be the ten important and influential biotechnology patent law judicial decisions of 2018. These hinged on a variety of patent doctrines. An abbreviated new drug application (ANDA) for the multiple sclerosis drug Ampyra set the stage for the Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc. (Fed. Cir. 2018) decision, in which the Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance on how to conduct an obviousness analysis (35 U.S.C. §103). The Berkheimer v. HP Inc. (Fed. Cir. 2018) decision, although addressing a software invention, provided valuable insight into …

Confusing The Similarity Of Trademarks Law In Domain Name Disputes, Christine Haight Farley

Akron Law Review

This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name disputes under previous gTLDs. Now second-generation disputes will have the added feature of the domain name having a suffix that will likely be a generic word, geographic term, or trademark. This addition is significant. Rather than disputes over , we …

Harmonizing Cultural Ip Across Borders: Fashionable Bags & Ghanaian Adinkra Symbols, J. Janewa Osei-Tutu

Akron Law Review

Global copyright and trademark laws protect symbols, names, and literary and artistic works. However, when their primary significance is cultural, because they are neither individual original works nor symbols that are used as commercial identifiers, intellectual property laws do not protect these symbols or artistic works. This is true, even if these goods are protected under national laws as part of that nation’s cultural heritage. Once these cultural goods cross borders, there is no international law that will enable the country from which these goods originate to assert its rights in other countries. This Article characterizes these cultural goods as …

The (Re)Newed Barrier To Access To Medication: Data Exclusivity, Srividhya Ragavan

Akron Law Review

This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents o n life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development. Consequently, …

Intellectual Property, Traditional Knowledge, And Traditional Cultural Expressions In Native American Tribal Codes, Dalindyebo Bafana Shabalala

Akron Law Review

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in …

The Lost Tort Of Moral Rights Invasion, Patrick R. Goold

Akron Law Review

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply …

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Akron Law Review

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

Super Bowl I, Jazz Radio, And The Glass Menagerie: Copyright, Preservation, And Private Copies, R. Anthony Reese

Akron Law Review

Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result, …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Akron Law Review

This Article focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement—use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but only in cases involving particularly egregious conduct.

Several recent trends in the application of the TCA, …

Comment: An Examination Of The Impact Of Malpractice Law On Telepsychiatry Clinicians & Clients With Suicidal Ideations, Tristan Serri

Akron Law Review

It has been said numerous times that the law runs five years behind technology. Although this lag frequently causes numerous difficulties in all aspects of law, this delay is even more impactful in telemedicine. While all fields of telemedicine are expanding rapidly across the United States, the majority of states and the federal government have not yet implemented proper laws and procedures to protect both providers of telemedicine and their patients. The dearth of needed protocols and protections is even more pronounced when examining the subfield of telepsychiatry.

In particular, the malpractice law surrounding telepsychiatry when dealing with patients with …

Human Capital As Intellectual Property? Non-Competes And The Limits Of Ip Protection, Viva R. Moffat

Akron Law Review

Non-compete agreements have become increasingly common in recent years, imposed on twenty to forty percent (or more) of employees in some industries, both in the knowledge-intensive fields where they might be expected but also in the service industries on low-wage workers. As non-competes have proliferated, they have become increasingly controversial. Much of the discussion revolves around whether the agreements help or hinder innovation and economic growth. While this is also accompanied by some concern about the effect of non-competes on employees, little attention has been paid to the fact that employers use non-competes as tools for protecting intellectual property and …

Trademark Boundaries And 3d Printing, Lucas S. Osborn

Akron Law Review

3D printing technology promises to disrupt trademark law at the same time that trademark law and policy sustain repeated criticism. The controversial growth of trademark law over the last century has yielded amorphous sponsorship and affiliation confusion issues and empirically fragile post-sale and initial-interest confusion theories, among others. Into this melee marches 3D printing technology, which dissociates the process of design from that of manufacturing and democratizes manufacturing. Rather than being embodied only in physical objects, design is embodied in digital CAD files that users can post and sell on the internet. The digitization of physical objects raises fundamental questions …

Charitable Trademarks, Leah Chan Grinvald

Akron Law Review

Charity is big business in the United States. In 2015, private individuals or entities donated over $350 billion, which accounted for approximately two percent of the gross domestic product in the United States. Even though this seems like big money, these donations were split among over 1.5 million organizations. And each year, the number of charitable organizations grows and therefore, the competition for public donations increases. In part to succeed in such competition, some charitable organizations have turned to branding and trademarks as a way to differentiate their entities and to encourage donations. Drawing from the for-profit branding and trademarking …

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

Akron Law Review

The contemporary copyright infringer is pretty much anyone who can get caught. Yet, who could be caught back when the Copyright Act of 1976 was enacted is just a subset of those who can be caught today—we had very different concepts about who was the intended target of an infringement action than who fits into that mold today. The advent and growth of cyberspace communication now makes it both easier to infringe and for IP owners, with very little effort, to capture infringers. The ability of individuals to both easily infringe and easily be found infringing has altered the IP …

Copyright Easements, Jason Mazzone

Akron Law Review

When authors assign the copyright in their work to publishers, some productive uses of the work are impeded. The author loses opportunities to use or to authorize others to use the work unless the publisher consents; the publisher does not permit all uses of the work that the author would like or that would benefit a consuming audience. Copyright easements can solve the problem. Under a system of copyright easements, an easement holder would have designated rights in a creative work that would permit uses of the work that would ordinarily require permission of the copyright owner. If the author …

Reconsidering Experimental Use, Rochelle Cooper Dreyfuss

Akron Law Review

In the years since the Supreme Court began to narrow the scope of patentable subject matter, uncertainties in the law have had a deleterious impact on several important innovation sectors, including, in particular, the life sciences industry. There are now initiatives to expand patentable subject matter legislatively. In this article, I suggest that the Supreme Court’s jurisprudence is an outgrowth of the concern that patents on fundamental discoveries impede scientific research. To deal with that issue, any measure to expand the subject matter of patenting should be coupled with a parallel expansion of defenses to infringement liability, including the restoration …

Patent Submission Policies, Ryan T. Holte

Akron Law Review

This Article focuses on the early stage of commercialization communication when a third-party inventor owns an invention protected by a patent that a manufacturer-commercializer may profit from producing—long before any allegation of infringement or litigation. These submission-review communications by unaffiliated third parties are covered by corporate policies known as “patent submission policies.” They are the figurative “front doors” to a company for any third-party inventor, crucial to the commercialization of inventions generally. Unfortunately, patent submission policies have thus far remained unstudied in legal academic scholarship.

This Article collects and analyzes the current variations of patent submission policies adopted by the …

"Transplanting" Organ Donors With Printers: The Legal And Ethical Implications Of Manufacturing Organs, Katherine A. Smith

Akron Law Review

Three-dimensional (3D) printing is no longer restricted to simple inanimate objects; that conjecture is a thing of the past. With advancements in many areas of science, living tissues and organs can now be printed through a technique called 3D bioprinting. This technology could potentially save the lives of the 120,000 Americans in need of an organ transplant. However, whether or not a 3D bioprinted organ qualifies as a “human organ” under the National Organ Transplant Act (NOTA) and whether 3D bioprinted organs require federal approval could either delay or completely bar this technology’s promise. The Ninth Circuit’s Flynn v. Holder …

Curated Innovation, Lital Helman

Akron Law Review

The regulation of innovation-intensive industries is a critical issue for both innovation policy and regulation. In this Article, I propose a new framework to the way innovation-intensive industries are regulated.

My proposal is a four-pronged model, which I term “Curated Innovation.” In the first stage, policymakers would set a standard that would represent the outcome the regulation seeks to achieve. Second, policymakers would launch a competition, where innovative technologies or methods would race to meet the standard that was defined. Third, policymakers would select the methods or technologies that come closest to meeting the standard and create an incentive in …

Are Universities Special?, Shubha Ghosh

Akron Law Review

Universities offer a space for development of ideas, exploration of basic research, and productive outlets for creation and invention. As such, they are key to the innovation environment within which intellectual property laws operate. Although scholarship has focused on universities as institutions counter to other institutions like markets and government, less attention has been paid to universities as organizations, a site for governance through detailed rules and commonly understood norms. When understood as an organization, universities display three overlapping, but distinct models: one of pure research, one of pure commercialization, and one of public purpose. These three models together define …

Intellectual Property Revenue Sharing As A Problem For University Technology Transfer, Jennifer Carter-Johnson

Akron Law Review

The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by patent licensing with inventors. Many scholars have debated the effectiveness of university implementation of this requirement, and, indeed, the low rate of invention disclosure by academic researchers to the university is often a bottleneck in the technology-transfer process.

Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole Act requirements have explored faculty-inventor motivations. However, in most cases, university inventions are joint products of a group of university members including not only faculty but also post-doctoral researchers …

What's The Harm Of Trademark Infringement?, Rebecca Tushnet

Akron Law Review

Abstract

Over the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.

The Right To Be Forgotten, Lisa Owings

Akron Intellectual Property Journal

This Article advocates a new test for balancing free speech and privacy interests online. There should be a three-prong test for whether, and under what circumstances, a user may request deletion of online data under the right to be forgotten. First, if the information is the publication of a private fact that is offensive to a reasonable person and not newsworthy, it should never be published unless the individual chooses to do so. Second, if individuals posted the information about themselves or as an expression of their opinion, they should have the right to remove it. This should apply not …

Alice's Adventures In Oz: Revealing The Man Behind The Curtain, David Swetnam-Burland, Stacy O. Stitham

Akron Intellectual Property Journal

According to the Supreme Court's contrariwise thinking, in the world of Alice Corp. Pty. Ltd. v. CLS Bank Internation, Section 101 can and should be used early in litigation to distinguish a genuine, patentable invention from a sham-that is, to expose to scrutiny the idea behind the curtain.