Law Commons^™

Intellectual Property And The End Of Work, Camilla Hrdy

Florida Law Review

The conventional wisdom is that intellectual property (IP) is good for jobs. Indeed, according to legislators and the U.S. patent office, IP “creates jobs.” But this is not quite right. A primary function of IP is to increase the amount of innovation in the economy. Yet a significant subset of the innovations protected by IP rights, from self-service kiosks to self-driving cars, are in fact labor-saving and indeed labor-displacing. They reduce the amount of paid human labor required to complete a task. Therefore, to the extent IP is successful at incentivizing innovation, IP actually contributes to job loss. More precisely, …

Staking The Boundaries Of Software Copyrights In The Shadow Of Patents, Pamela Samuelson

Florida Law Review

Ever since the venerable Supreme Court opinion in Baker v. Selden, courts and commentators have overwhelmingly endorsed the rule that copyright and utility patent protections for intellectual creations are mutually exclusive. That is, an intellectual creation may be eligible for copyright or utility patent protection, but not both. Original works of authorship are channeled to the copyright regime, while novel and nonobvious technologies are channeled to the patent system.

The well-established mutual exclusivity rule for copyright and utility patents was recently renounced, as applied to computer program innovations, by the Court of Appeals for the Federal Circuit (CAFC) in Oracle …

What If Artificial Intelligence Wrote This? Artificial Intelligence And Copyright Law, Victor M. Palace

Florida Law Review

The increasing sophistication and proliferation of artificial intelligence has given rise to a provoking question in copyright law: Who is the copyright owner of a work created by autonomous artificial intelligence? In other words, when a machine learns, thinks, and acts without human input, and it creates a work, what person should own the copyright, if any? This Note explains why this is a pressing question and why current laws and practices fail to address the issue. It then analyzes the arguments for and against the possible choices: the artificial intelligence, the user, the programmer, the company that owns the …

The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser

Florida Law Review

When Congress implemented inter partes review (IPR) and other patent post-grant proceedings through the passage of the America Invents Act (AIA) in 2011, it provided that petitioners would be estopped in later proceedings from raising grounds for invalidity that they “raised or reasonably could have raised during that inter partes review.” 35 U.S.C. § 315(e)(2). However, substantial uncertainty in interpretation of this provision causes an enormous impact on an accused patent infringer’s decision of whether and on what grounds to petition for review. One reading of the statutory estoppel provision suggests that “during that inter partes review” refers to the …

Teva And The Process Of Claim Construction, Lee Petherbridge, R. Polk Wagner

Florida Law Review

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decision-making in this area. This Article closely examines the Teva opinion and situates it within modern claim construction jurisprudence. The thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction, but that for unexpected reasons the case is far …

Zombie Patents And Zombie Companies With Patents, Xuan-Thao Nguyen

Florida Law Review

No abstract provided.

Black Box Tinkering: Beyond Disclosure In Algorithmic Enforcement, Maayan Perel, Niva Elkin-Koren

Florida Law Review

The pervasive growth of algorithmic enforcement magnifies current debates regarding the virtues of transparency. Using codes to conduct robust online enforcement not only amplifies the settled problem of magnitude, or “too-much-information,” often associated with present- day disclosures, but it also imposes practical difficulties on relying on transparency as an adequate check for algorithmic enforcement. Algorithms are non-transparent by nature; their decision-making criteria are concealed behind a veil of code that we cannot easily read and comprehend. Additionally, these algorithms are dynamic in their ability to evolve according to different data patterns. This further makes them unpredictable. Moreover, algorithms that enforce …

A New Framework For Determining Reasonable Royalties In Patent Litigation, Norman V. Siebrasse, Thomas F. Cotter

Florida Law Review

Over the past decade, eight-, nine- and even ten-figure damages awards have become a recurring feature in patent infringement litigation, and yet the principal methods for calculating reasonable royalties (the most common form of damages in patent cases) remain unsatisfying and incoherent. Most frequently, courts employ what we refer to as a “pure ex ante” approach, which aims to construct the hypothetical bargain the parties themselves would have struck prior to infringement (ex ante), based on whatever information would have been available to them at that time. This approach has the advantage of avoiding patent “holdup”— basing the royalty partly …

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Florida Law Review

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Removing The Troll From The Thicket: The Case For Enhancing Patent Maintenance Fees In Relation To The Size Of A Patent Owner’S Patent Portfolio, David S. Olson

Florida Law Review

This Article proposes a novel solution to part of the problem that large patent portfolios can cause. Both so-called “patent trolls” and firms that commercialize the patents that they own can accumulate and then abuse large patent portfolios, even if most of the patents in the portfolio are of little value. Instead of suggesting reforms to better determine the value and boundaries of individual patents, as many others have already done, this Article proposes that the U.S. Patent and Trademark Office (PTO) multiply the amount owed to keep a patent in force (patent maintenance fees) based on the size of …

Recent Development: Craigslist And The Cfaa: The Untold Story, Clark S. Splichal

Florida Law Review

There is one area in which Craigslist Inc. appears particularly invested these days: its legal bills. Notoriously cutthroat, this online classified marketplace has steadfastly clung to its bare-boned business blueprint while resisting any form of growth or innovation over the years. Craigslist has not, however, shied away from taking on its would-be competitors in court, oftentimes those attempting only to “add[] a layer of value” to the Craigslist formula. Not surprisingly, Craigslist’s arsenal of litigation weapons has become quite vast in recent years: claims arising under the Copyright Act, the Lanham Act, and the Computer Fraud and Abuse Act (CFAA), …

Regulating Digital Trade, Sapna Kumar

Florida Law Review

Under § 337 of the Tariff Act, the International Trade Commission (ITC) has jurisdiction over articles that enter the country and infringe intellectual property rights. Recently, the ITC vastly expanded its powers, asserting jurisdiction over imported digital files that infringe intellectual property rights. This Article examines the limits of the ITC’s authority, arguing that it lacks jurisdiction over digital information, because information in the abstract cannot be controlled by a court or an agency. It maintains that the ITC has misconstrued the breadth of its statutory authority under the Tariff Act and that the traditional tools of statutory interpretation show …

I'M A Little Treepot: Conceptual Separability And Affording Copyright Protection To Useful Articles, Sonja Wolf Sahlsten

Florida Law Review

To determine if a useful article—generally ineligible for copyright protection—has pictorial, graphic, or sculptural features that are copyrightable, the Copyright Act and the legislative intent expressed through the Act’s legislative history require that those artistic features be identified separately and capable of existing independently of the utilitarian function of the work. If the artistic features are either physically or conceptually separable from the utilitarian function of the work, then they are copyrightable. However, determining if artistic features are conceptually separable from the utilitarian function of the work has proven to be extremely difficult.

Since Mazer v. Stein, the U.S. Supreme …

Antitrust Limits On Targeted Patent Aggregation, Alan Devlin

Florida Law Review

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax innovators and appear to restrict rather than facilitate wealth transfer to original patentees, their worst rent-seeking practices almost certainly reduce net incentives to innovate and harm consumers. This result is more likely if the principal desirable incentive that PAEs create is to file patents rather …

Inventive Application: A History, Jeffrey A. Lefstin

Florida Law Review

The Supreme Court’s recent cases on patent-eligible subject matter have struggled to draw the line between unpatentable fundamental principles, such as laws of nature and abstract ideas, and patentable inventions. In Mayo v. Prometheus, the Court suggested that only “inventive applications” of fundamental principles fall within the domain of the patent system. Both Mayo and its intellectual forebear, Parker v. Flook, anchored this doctrine in Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841. But the Supreme Court has founded the inventive application doctrine on a basic misapprehension. Neilson’s patent on the hot …

I'M A Little Treepot: Conceptual Separability And Affording Copyright Protection To Useful Articles, Sonja Wolf Sahlsten

Florida Law Review

To determine if a useful article—generally ineligible for copyright protection—has pictorial, graphic, or sculptural features that are copyrightable, the Copyright Act and the legislative intent expressed through the Act’s legislative history require that those artistic features be identified separately and capable of existing independently of the utilitarian function of the work. If the artistic features are either physically or conceptually separable from the utilitarian function of the work, then they are copyrightable. However, determining if artistic features are conceptually separable from the utilitarian function of the work has proven to be extremely difficult.

Since Mazer v. Stein, the U.S. Supreme …

Antitrust Limits On Targeted Patent Aggregation, Alan Devlin

Florida Law Review

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax innovators and appear to restrict rather than facilitate wealth transfer to original patentees, their worst rent-seeking practices almost certainly reduce net incentives to innovate and harm consumers. This result is more likely if the principal desirable incentive that PAEs create is to file patents rather …

Inventive Application: A History, Jeffrey A. Lefstin

Florida Law Review

The Supreme Court’s recent cases on patent-eligible subject matter have struggled to draw the line between unpatentable fundamental principles, such as laws of nature and abstract ideas, and patentable inventions. In Mayo v. Prometheus, the Court suggested that only “inventive applications” of fundamental principles fall within the domain of the patent system. Both Mayo and its intellectual forebear, Parker v. Flook, anchored this doctrine in Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841. But the Supreme Court has founded the inventive application doctrine on a basic misapprehension. Neilson’s patent on the hot …

I'M A Little Treepot: Conceptual Separability And Affording Copyright Protection To Useful Articles, Sonja Wolf Sahlsten

Florida Law Review

To determine if a useful article—generally ineligible for copyright protection—has pictorial, graphic, or sculptural features that are copyrightable, the Copyright Act and the legislative intent expressed through the Act’s legislative history require that those artistic features be identified separately and capable of existing independently of the utilitarian function of the work. If the artistic features are either physically or conceptually separable from the utilitarian function of the work, then they are copyrightable. However, determining if artistic features are conceptually separable from the utilitarian function of the work has proven to be extremely difficult.

Since Mazer v. Stein, the U.S. Supreme …

Antitrust Limits On Targeted Patent Aggregation, Alan Devlin

Florida Law Review

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax innovators and appear to restrict rather than facilitate wealth transfer to original patentees, their worst rent-seeking practices almost certainly reduce net incentives to innovate and harm consumers. This result is more likely if the principal desirable incentive that PAEs create is to file patents rather …

Inventive Application: A History, Jeffrey A. Lefstin

Florida Law Review

The Supreme Court’s recent cases on patent-eligible subject matter have struggled to draw the line between unpatentable fundamental principles, such as laws of nature and abstract ideas, and patentable inventions. In Mayo v. Prometheus, the Court suggested that only “inventive applications” of fundamental principles fall within the domain of the patent system. Both Mayo and its intellectual forebear, Parker v. Flook, anchored this doctrine in Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841. But the Supreme Court has founded the inventive application doctrine on a basic misapprehension. Neilson’s patent on the hot …

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

Florida Law Review

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argue that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality, …

Disuniformity, Jason Rantanen, Lee Petherbridge Ph.D.

Florida Law Review

The United States Court of Appeals for the Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law—one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response—vesting exclusive jurisdiction for patent appeals in the Federal Circuit—was to permit that court to develop patent law in the direction of greater clarity and uniformity. Both at the time of the Federal Circuit's creation and again more recently scholars, judges, and practitioners have waged great debates over whether patent law uniformity furthers the ultimate goals of entrepreneurship and innovation. These debates have …

Incentivizing The Ordinary User, Gaia Bernstein

Florida Law Review

Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate and looks instead at the players regulated by the patent system. This Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors but largely ignores a crucial player: the ordinary user.

The user, in his everyday decisions of whether to adopt a technology, plays a critical role in determining whether a new technology will be disseminated. Yet patent law contains an overly simplistic view of …

The Public Perception Of Intellectual Property, Gregory N. Mandel

Florida Law Review

Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1,700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights ought to be differed substantially from what intellectual property law actually provides, and popular conceptions of the basis for intellectual property rights were contrary to commonly accepted bases relied upon in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property law …

The High Cost Of Low Sanctions, Irina D. Manta

Florida Law Review

Low sanctions can initially appear to be a mitigating factor for unjust or inefficient laws, but this perception is likely wrong. This Article argues that low sanctions may have a pernicious effect on the democratic process and on legislative rule making because, as both public choice theory and historical precedent suggest, the laws accompanying these sanctions are more likely to perpetuate themselves and become part of the unquestioned background fabric of society. This Article focuses on intellectual property law (in particular, copyright) and examines the progression of suboptimal laws through widespread low sanctions that may mostly escape the public eye …

The Trespass Fallacy In Patent Law , Adam Mossoff

Florida Law Review

The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an …

Closing The “Free Speech” Loophole: The Case For Protecting College Athletes’ Publicity Rights In Commercial Video Games, Marc Edelman

Florida Law Review

When Electronic Arts Inc. (Electronic Arts) launched its video game series NCAA Football in June 1993, the available technology limited developers to crafting avatars that looked like faceless figurines. Today, however, advancements in digital technology have enabled developers to create “virtual players” that strongly resemble their real-life counterparts. For example, in NCAA Football 12, the avatar that represents University of Florida running back Chris Rainey possesses Chris Rainey’s actual height, weight, skin complexion, and hair style. In addition, both Chris Rainey and his virtual counterpart wear the same jersey number, visor, gloves, and sweatbands.

Recently, Pulitzer Prize-winning journalist Taylor …

Competitive Patent Law, William Hubbard

Florida Law Review

Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must “out-innovate . . . the rest of the world,” and that patent reform is a “critical dimension[]” of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will “give American inventors and innovators the 21st century patent system they need to compete.” Surprisingly, no legal scholar has assessed whether patent reform is capable of making American firms …

The Accidental Agency?, Sapna Kumar

Florida Law Review

This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position …