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Articles 1 - 30 of 54
Full-Text Articles in Law
Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu
Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu
Faculty Scholarship
Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.
The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …
Parody As Brand, Stacey Dogan, Mark Lemley
Parody As Brand, Stacey Dogan, Mark Lemley
Faculty Scholarship
Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Faculty Scholarship
It is widely argued that so-called “patent trolls” are corrupting the U.S. patent system and endangering technology innovation and commercialization at large. For example, a recent White House report argued that “trolls” hurt firms of all sizes and advocated for specific policies aimed at curtailing practices thought to be particularly harmful. Yet the existence and extent of any systematic effects of so-called “troll-like” behavior, and the implications of modern patent assertion practices by Non-Practicing Entities (“NPEs”), remains unclear. This article develops novel empirical evidence to inform the debate over NPEs on patent litigation. Specifically, we conduct a large-scale empirical analysis …
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Faculty Scholarship
No abstract provided.
Reverse Payments, Perverse Incentives, Murat C. Mungan
Reverse Payments, Perverse Incentives, Murat C. Mungan
Faculty Scholarship
Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, …
Explaining The ‘Unpredictable’: An Empirical Analysis Of U.S. Patent Infringement Awards, Samantha Zyontz, Michael J. Mazzeo, Jonathan Hillel
Explaining The ‘Unpredictable’: An Empirical Analysis Of U.S. Patent Infringement Awards, Samantha Zyontz, Michael J. Mazzeo, Jonathan Hillel
Faculty Scholarship
Patent infringement awards are commonly thought to be unpredictable, which raises concerns that patents can lead to unjust enrichment and impede the progress of innovation. We investigate the unpredictability of patent damages by conducting a large-scale econometric analysis of award values. We begin by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. Using these data, we construct an econometric model that explains over 75% …
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Faculty Scholarship
¶Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.¶ ¶This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The …
The Federal Circuit As A Federal Court, Paul Gugliuzza
The Federal Circuit As A Federal Court, Paul Gugliuzza
Faculty Scholarship
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 …
Five Oft-Repeated Questions About China's Recent Rise As A Patent Power, Peter K. Yu
Five Oft-Repeated Questions About China's Recent Rise As A Patent Power, Peter K. Yu
Faculty Scholarship
Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.4% to 16,406, earning China the fourth spot, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had …
Just Undercompensation: The Idiosyncratic Premium N Eminent Domain, Brian A. Lee
Just Undercompensation: The Idiosyncratic Premium N Eminent Domain, Brian A. Lee
Faculty Scholarship
No abstract provided.
Notice Failure And Notice Externalities, Michael J. Meurer, Peter Menell
Notice Failure And Notice Externalities, Michael J. Meurer, Peter Menell
Faculty Scholarship
Economic theory suggests that notice plays a critical role in resource development. Resource developers will be disinclined to make significant investments without reasonable confidence that their projects will not violate the rights of others. Land rights systems and institutions generally provide reliable notice at relatively modest cost, enabling exclusionary rights to encourage efficient real estate development. Property boundaries, right structures, and neighbors with whom resource developers might have to negotiate conflicts can usually be ascertained relatively easily. Furthermore, zoning institutions generally provide relatively prompt, low cost, and reliable dispute resolution before developers need to expend substantial resources. Therefore, land claims …
A Case For The Public Domain, Clark Asay
A Case For The Public Domain, Clark Asay
Faculty Scholarship
Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without …
Of Smart Phone Wars And Software Patents, Stuart Graham, Saurabh Vishnubhakat
Of Smart Phone Wars And Software Patents, Stuart Graham, Saurabh Vishnubhakat
Faculty Scholarship
Among the main criticisms currently confronting the US Patent and Trademark Office are concerns about software patents and what role they play in the web of litigation now proceeding in the smart phone industry. We will examine the evidence on the litigation and the treatment by the Patent Office of patents that include software elements. We present specific empirical evidence regarding the examination by the Patent Office of software patents, their validity, and their role in the smart phone wars. More broadly, this article discusses the competing values at work in the patent system and how the system has dealt …
Patenting Nature: A Problem Of History, Christopher Beauchamp
Patenting Nature: A Problem Of History, Christopher Beauchamp
Faculty Scholarship
No abstract provided.
A Numerus Clausus Principle For Intellectual Property, Christina Mulligan
A Numerus Clausus Principle For Intellectual Property, Christina Mulligan
Faculty Scholarship
No abstract provided.
Coping With The America Invents Act: Patent Challenges For Startup Companies, Patricia E. Campbell
Coping With The America Invents Act: Patent Challenges For Startup Companies, Patricia E. Campbell
Faculty Scholarship
No abstract provided.
Biomedical Patents At The Supreme Court: A Path Forward, Arti K. Rai
Biomedical Patents At The Supreme Court: A Path Forward, Arti K. Rai
Faculty Scholarship
Although most would argue that software patents pose a bigger challenge, the U.S. Supreme Court has recently focused on biomedical patents. Two of the Court's recent decisions scaling back such patents, Mayo v. Prometheus and AMP v. Myriad, have provoked justifiable anxiety for those concerned about biomedical innovation, particularly in the area of personalized medicine. While acknowledging significant limitations in the Court's reasoning in both cases, this Essay sketches a reading that is consistent with the results and innovation-friendly.
What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary C. Burns
What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary C. Burns
Faculty Scholarship
Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …
Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto’S Granting Patterns, Michael D. Frakes, Melissa F. Wasserman
Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto’S Granting Patterns, Michael D. Frakes, Melissa F. Wasserman
Faculty Scholarship
No abstract provided.
The Nagoya Protocol And Synthetic Biology Research: A Look At The Potential Impacts, Margo A. Bagley, Arti K. Rai
The Nagoya Protocol And Synthetic Biology Research: A Look At The Potential Impacts, Margo A. Bagley, Arti K. Rai
Faculty Scholarship
This report, prepared for the Synthetic Biology Project at the Woodrow Wilson International Center for Scholars, analyzes the 2010 Nagoya Protocol to the Convention on Biological Diversity and how it may affect U.S. researchers working in the field of synthetic biology. The objective of the Protocol is to provide a transparent framework for the acquisition and sharing of genetic resources on fair and equitable terms that facilitate the conservation of biological diversity and associated traditional knowledge. The report finds significant uncertainty surrounding the temporal scope of the Agreement as well as the types of genetic material that will be covered …
From Berne To Beijing: A Critical Perspective, David L. Lange
From Berne To Beijing: A Critical Perspective, David L. Lange
Faculty Scholarship
Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …
Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald
Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald
Faculty Scholarship
According to the current copyright statute, copyrighted works of music, film, and literature will begin to transition into the public domain in 2018. While this will prove a boon for users and creators, it could be disastrous for the owners of these valuable copyrights. Therefore, the next few years will likely witness another round of aggressive lobbying by the film, music, and publishing industries to extend the terms of already-existing works. These industries, and a number of prominent scholars, claim that when works enter the public domain, bad things will happen to them. They worry that works in the public …
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel
Faculty Scholarship
On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Faculty Scholarship
The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …
Trademark Cosmopolitanism, Sonia K. Katyal
Trademark Cosmopolitanism, Sonia K. Katyal
Faculty Scholarship
The world of global trademarks can be characterized in terms of three major shifts: first, a shift from national to global branding strategies; second, a shift from national and regional systems to harmonized international regimes governing trademark law; and third, a concurrent shift from local to transnational social movements that challenge branding and other corporate practices. The rise of transnational brands brings with it an attendant series of legal shifts in trademark law. Long considered the stepchild of intellectual property law, today, trademark law has morphed into a powerful global legal phenomenon, revealing a foundational shift from national and regional …
Critical Legal Studies In Intellectual Property And Information Law Scholarship, (Symposium), Sonia K. Katyal, Peter Goodrich, Rebecca L. Tushnet
Critical Legal Studies In Intellectual Property And Information Law Scholarship, (Symposium), Sonia K. Katyal, Peter Goodrich, Rebecca L. Tushnet
Faculty Scholarship
No abstract provided.
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Faculty Scholarship
This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …
From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg
From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg
Faculty Scholarship
Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright …
Make The Patent “Polluters” Pay: Using Pigovian Fees To Curb Patent Abuse, James Bessen, Brian Love
Make The Patent “Polluters” Pay: Using Pigovian Fees To Curb Patent Abuse, James Bessen, Brian Love
Faculty Scholarship
On the heels of a widely reported uptick in egregious patent enforcement, six patent reform bills have been introduced in the last six months. All six bills aim to curb nuisance-value patent litigation, a phenomenon popularly referred to as “patent trolling,” by reducing the cost of defending these suits. In this essay, we argue that these bills, while admirable, treat the symptoms of our patent system’s ills, rather than the disease itself: a growing glut of unused high-tech patents that have little practical value apart from use as vehicles for nuisance-value litigation. Accordingly, we urge Congress to consider one additional …
Patent Variation: Discerning Diversity Among Patent Functions, Jessica Silbey
Patent Variation: Discerning Diversity Among Patent Functions, Jessica Silbey
Faculty Scholarship
This Article describes and analyzes qualitative interview data collected over a five-year period. The goal of the interviews was to explore the roles of intellectual property (“IP”) in IP rich fields. Interviews were with diverse actors in a wide-range of industries: film, book publishing, visual arts, internet commerce, biology, engineering, chemistry, computer science. The data described and analyzed in this Article focuses on the specific question about the diverse functioning of patents in the subset of interviewees who are scientists and engineers, their lawyers and business partners. The Article proceeds in two parts. Part I describes the empirical dimension of …