Law Commons^™

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

“Either Secrecy, Or Legal Monopoly”: Why We Should Choose Fracking Patents, Sarah Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.

Pornography And Gender Inequality—Using Copyright Law As A Step Forward, Kayla Louis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Small Can Be Inventive: The Patentability Of Nanoscale Reproductions Of Macroscale Machines, Christopher Anderson

William & Mary Business Law Review

Nanotechnology is a thriving new field of research. If even a fraction of the excitement surrounding the field proves to be true, there will be profound benefits in many aspects of our lives. Crucial to its development, however, will be the treatment of nanotechnology with respect to patents. This field has the unique potential to replicate existing machines and devices at a billionth of their size. In light of rulings that “mere scaling” of prior inventions does not create a patentable invention, problems with patentability might arise. This Note tackles this issue, considering the patentability requirements of novelty and non-obviousness, …

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

William & Mary Law Review

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Pleading Patent Infringement: Res Ipsa Loquitur As A Guide, Andrew L. Milam

William & Mary Law Review

No abstract provided.

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …

Let’S Stop Playing Games: A Consistent Test For Unlicensed Trademark Use And The Right Of Publicity In Video Games, Arlen Papazian

William & Mary Business Law Review

Courts cannot agree on how to handle cases centered on unlicensed use of a trademark or celebrity’s likeness in video games. Two tests have arisen as the primary standards by which to judge such cases: the Rogers test and the transformative-use test. However, in an area of law muddled by multiple standards and the inconsistent application of those standards to a relatively new medium, neither test can adequately balance mark holder rights with the constitutional rights of video game developers. In this turmoil, large video game companies take advantage of marks and licenses knowing the rightful holders will have little …

Indefiniteness As An Invalidity Case, Janet M. Smith

William & Mary Law Review

No abstract provided.

Perverse Innovation, Dan L. Burk

William & Mary Law Review

An inescapable feature of regulation is the existence of loopholes: activities that formally comply with the text of regulation, but which in practice avoid the desired outcome of the regulation. Considerable ingenuity may be devoted to exploiting regulatory loopholes. Where technological regulation is at issue, such ingenuity may often be devoted to developing new technology that avoids the regulation; such innovation may be termed “perverse” because it is directed to avoiding the regulation that prompted it. Nonetheless, in this Article I argue that such regulatory circumvention may result in socially beneficial innovation. Drawing on insights from innovation policy in the …

Productivity And Diversity In Research And Agriculture: Improving The Ipr Landscape For Food Security, A. Max Jarvie

William & Mary Environmental Law and Policy Review

While food security has long been a national or regional burden, the advent of international instruments governing intellectual property rights over conventionally bred plant varieties and genetically modified plants has made the management of food security a global concern. Current intellectual property regimes do not provide clear support for innovations in crop productivity or biodiversity, both of which are implicated in the long term stability of food supply. This Paper examines the intellectual property regimes governing agricultural food stocks with respect to the level of support they provide for three key research programs in the development of crop seeds and …

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

Harnessing Human Potential: Induced Pluripotent Stem Cell Patentability Under The Lens Of Myriad, Derek Van Den Abeelen

William & Mary Business Law Review

After the Supreme Court's decision in Ass'n for Molecular Pathology v. Myriad Genetic's, previously patentable materials may now be rejected as unpatentable subject matter, specifically because they cover natural products. This presents a problem for businesses performing adult stem cell research and development, because stem cells exist in nature but pluripotency in adult stem cells does not. The United States Patent and Trademark Office (USPTO) and federal courts must recognize that these stem cells are still patentable because there is human intervention that creates a product that could not exist in nature on its own. Neither the USPTO nor any …

A Pasture Theory Of Creative Controls: A New Approach To Copyright And Patent Subject Matter Overgrowth, Maximilian Meese

William & Mary Law Review

No abstract provided.

Intellectual Property And The Presumption Of Innocence, Irina D. Manta

William & Mary Law Review

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power …

Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer

William & Mary Law Review

No abstract provided.

The Fairest Of Them All: The Creative Interests Of Female Fan Fiction Writers And The Fair Use Doctrine, Pamela Kalinowski

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Why Manufacturing Matters: 3d Printing, Computer-Aided Designs, And The Rise Of End-User Patent Infringement, Sklyer R. Peacock

William & Mary Law Review

No abstract provided.

Fixing Notice Failure: How To Tame The Trolls And Restore Balance To The Patent System, Mark Rawls

William & Mary Business Law Review

Patent litigation has become more frequent, more uncertain, and more expensive. Much of this can be traced to the rise of patent trolls asserting vague and uncertain software patents. Trolls have been derided as bringing frivolous and vexatious suits against productive companies, sapping the very same innovativeness that the patent system is supposed to encourage. Instead, companies are subject to nuisance-value suits as an ordinary course of business; for less established companies, such suits can threaten their very existence. Often, because of uncertain rules about claim construction and the granting of very broad patents, the accused infringer has no notice …

More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg

William & Mary Law Review

Part I begins the inquiry by describing trademark’s connection with other consumer information laws. In many cases optimal trademark policy—by whatever criteria—depends on the state of play in another regime. This complicates trademark’s development in multiple ways. It is not simply a problem of determining how another body of law treats the related issue. Identifying the relevant parallel regime is not always easy. Indeed, sometimes the laws most pertinent to the production of consumer information are more general in nature—think, for example, of the role that simple trespass law plays in determining what we know about how our meat is …

Copyrighting The "Useful Art" Of Couture: Expanding Intellectual Property Protection For Fashion Designs, M. C. Miller

William & Mary Law Review

No abstract provided.

Rauschenberg, Royalties, And Artists' Rights: Potential Droit De Suite Legislation In The United States, M. Elizabeth Petty

William & Mary Bill of Rights Journal

No abstract provided.

Contracting In The Dark: Casting Light On The Shadows Of Second Level Agreements, Abigail R. Simon

William & Mary Business Law Review

In the early days of the Internet, copyright owners concentrated on eliminating infringement threats posed by the new technology. Today, many copyright owners are partnering with major user-generated content platforms in order to participate in and receive compensation for some third-party infringement occurring on the Internet. YouTube pioneered such partnership arrangements in 2006 with a new kind of copyright license now referred to as a “second level agreement.” In 2008, YouTube unveiled Content ID, which streamlined the process for entering into second level agreements with the site. This Note analyzes Content ID and the second level agreements underlying it to …

Calming Unsettled Waters: A Proposal For Navigating The Tenuous Power Divide Between The Federal Courts And The Uspto Under The American Invents Act, William Rose

William & Mary Bill of Rights Journal

No abstract provided.

The Federal Circuit As A Federal Court, Paul R. Gugliuzza

William & Mary Law Review

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

The Changing Guard Of Patent Law: Chevron Deference For The Pto, Melissa F. Wasserman

William & Mary Law Review

Whereas Congress has increasingly turned to administrative agencies to regulate complex technical areas, the patent system has remarkably remained an outlier. In the patent arena, the judiciary— not a federal agency—is perceived to be the most important expositor of substantive patent law standards. Yet, as the criticism toward the patent system has grown, so too have the challenges to this unusual power dynamic. The calls for institutional reform culminated in late 2011 with the enactment of the historic Leahy-Smith America Invents Act (AIA). Although scholars have recognized that the AIA bestows a glut of new powers upon the United States …

Copyright Essentialism And The Performativity Of Remedies, Andrew Gilden

William & Mary Law Review

This Article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and poststructural theories of performativity, it argues that a court’s awareness of the likely remedy award in a particular dispute —combined with its normative view of how future actors should address similar disputes—“reaches back” and shapes the determination of the parties’ respective rights.

Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting the Second Circuit vacated a preliminary injunction against a …

What Is The "Invention"?, Christopher A. Cotropia

William & Mary Law Review

Patent law is in flux, with recent disputes and changes in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. Upon a closer look, however, many patent cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements over which “invention” the courts should be considering.

There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, in …

The Null Patent, Sean B. Seymore

William & Mary Law Review

Failure is the basis of much of scientific progress because it plays a key role in building knowledge. In fact, negative results compose the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information—whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results …

The Natural Flow Of Ideas: Why The Fifth Amendment Takings Clause And An Obscure Water-Rights Decision Might Thwart Attempts At Streamlining The Patent Queue, Joseph Kamien

William & Mary Bill of Rights Journal

No abstract provided.