Law Commons^™

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Notre Dame Law Review

The concept of rivalry is central to modern accounts of property. When one per-son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all. This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame-work, it argues that rivalry should …

Fashion Has No Function: Diminishing The Functionality Bar To Trademark Protection In The Fashion Industry, Seth Diasio

Mississippi College Law Review

The primary source of trademark law in the United States, The Lanham Act, outlines the requirements for trademark registration and protection. Marks which are distinctive, or that have acquired secondary meaning, can be registered on the Principal Register of the United States Patents and Trademarks Office (USPTO). Registered marks receive strong federal protection; however, those protections are unavailable to marks that are barred by the Act, but would otherwise meet the qualifications of registration. One of the strongest bars to registration is the functionality bar, which prevents registration of a functional mark regardless of whether it has a secondary meaning. …

Do Patents Drive Investment In Software?, James Hicks

Northwestern University Law Review

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

Patent Term Tailoring, Sarah Rajec

Indiana Law Journal

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Marquette Intellectual Property & Innovation Law Review

None

The Effects Of Section 101'S Subject Matter Eligibility Requirement On Fintech Patent Valuation Models, Fhernam Batiz

Marquette Intellectual Property & Innovation Law Review

None

What's Not Natural Phenomena? Let's Consider A Three-Step Innovative Concept Test For Composition Of Matter Claims, Sydney Hancock

IP Theory

Biotechnology innovation is rapidly growing, especially in the realm of biotech. This growth leads to questions about patent subject matter eligibility of natural phenomena. For example, currently the human genome and microbiome are being extensively studied, bacteriophages are being edited, animals are being cloned, and CRISPR is widespread. Additionally, composition of matter patent claims give the most protection to patent holders. Therefore, knowing when a natural phenomenon veers into human innovation is important for courts, lawyers, and innovators in the era of biotechnology and genetic engineering.

Part I discusses the history of Supreme Court cases on natural phenomena subject matter …

A Closer Look At The "Eye" Test: The British Influence On Early American Design Patent Infringement Law, Mark D. Janis

IP Theory

The Supreme Court has asserted that “[t]he Patent Clause in our Constitution ‘was written against the backdrop’ of the English system.” That notion has a long lineage. In 1818, the author of an anonymous “Note on the Patent Laws,” widely assumed to be Justice Story, claimed that “[t]he patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject.”

But these generalizations significantly overstate—and oversimplify—the influence of British law on the nascent American jurisprudence of patents. Early American jurists felt no reluctance …

A Case Study Of The Complicated History Of Rice University’S First Patents, Hannah G. Edlund

Journal of the Patent and Trademark Resource Center Association

Digitization and online public databases have made patent searches a much simpler pursuit in recent years. However, uncovering a pre-digital era patent’s history and context remains challenging. A search for the first patents assigned to Rice University highlighted associated issues. Older patent formats often do not clearly indicate inventor-assignee relationships, and applications and official communications are not available online. To determine how Rice came to own three 1948 patents, extensive archival research was required. Were these patents assigned to the University by inventors, independent of its support or funding, or was their work performed at and for Rice, thus obliging …

“That Means Nothing To Me As A Normal Person Who Doesn't Know About Patents”: Usability Testing Of Google Patents And Patent Public Search With Undergraduate Engineering Students, Graham Sherriff, Molly Rogers

Journal of the Patent and Trademark Resource Center Association

Patent searching is an important research tool for undergraduate engineering students, yet it requires special topic knowledge to conduct successfully. Patent database websites have the ability to alleviate or add to the complexity of patent searching, depending on their usability. Prompted by the launch of the US Patent and Trademark Office’s Patent Public Search (PPS) website in early 2022, the authors investigated the usability of PPS and Google Patents. The study's objective was to gain insights into the ways in which the websites of commonly-used patent databases support undergraduate students’ patent searching activities. The study examined students’ performance of typical …

Pooling Patents For Pandemic Progress: Mrna Vaccines And The Broader Context Of Modernatx Inc V. Pfizer Inc., Francis Brefo

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Psychedelic Drugs & The Prior Art Problem, Anneli E. Kawaoka

Indiana Law Journal

For the first time since the War on Drugs began in the 1970s, researchers have returned to the promise of psychedelic drugs for treating the growing mental health crisis in the United States. As research into psychedelic drugs as a conventional treatment method for mental health conditions grows, so does the number of filings at the U.S. Patent & Trademark Office for psychedelic-related patents. But the decades-long lapse in the development of psychedelic drugs creates the risk that low-quality psychedelic patents will issue, giving limited monopolies to companies that have not truly innovated in the psychedelic space. In this Note, …

Intellectual Property And Accessibility For Individuals With Disabilities, Eman A. Daas

Marquette Intellectual Property & Innovation Law Review

None.

When Inventors Go Bankrupt, Joseph Dietz

Cybaris®

No abstract provided.

Return To A One-Year Robust Grace Period In United States Patent Law, Mark Kallevig

Cybaris®

No abstract provided.

Much Dispute About Nothing? A Critical Examination Of The Backlash Against Investment Treaty Arbitration In International Intellectual Property Disputes, Andy Taylor

Cybaris®

No abstract provided.

Legislative Report: Patents For Humanity Act Of 2022, Stephen Kohn

Cybaris®

No abstract provided.

Artificial Intelligence Owning Patents: A Worldwide Court Debate, Maria A. Penkwitz

Marquette Intellectual Property & Innovation Law Review

None.

Rethinking Patent Law's Exclusive Appellate Jurisdiction, Christa Laser

Cleveland State Law Review

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment …

From Patients To Patents: The Disappearing I Of Innovation, Maggi Robert

St. Mary's Law Journal

The creation of the Mayo/Alice two-step test for patent eligible subject matter flipped the patent world upside down. Following its establishment, invalidation rates soared—particularly in the healthcare sector—impacting patients everywhere. The importance of patents in healthcare innovation and innovation generally has been emphasized as the consequences of this framework are realized.

The United States is no longer seen as a clear leader in innovation, and as a result, the economy is at risk. Start-ups and investors have turned to foreign nations where return on their investments in innovation are protected. This level of uncertainty regarding patents has never been seen …

Patents And The Pandemic: Intellectual Property, Social Contracts, And Access To Vaccines, Peter Lee

Washington Journal of Law, Technology & Arts

Through enormous public support and private initiative, biopharmaceutical firms developed safe and effective COVID-19 vaccines in record time. These remarkable vaccines represent humanity’s best chance to end the devastating pandemic. However, difficult questions about ownership and access have arisen alongside the development and deployment of these vaccines. Biopharmaceutical companies have patented many of the technologies underlying these vaccines, thus seeming to pit intellectual property rights against the objective of wide and rapid dissemination of these critical resources. While prevailing debates have been framed in the language of intellectual property, this Article suggests that contract principles can help break the impasse …

Patents And Market Research: Librarians Partnering To Assist Bioengineering Senior Design Teams, Jennifer L. Groff, Meredith Futral

Journal of the Patent and Trademark Resource Center Association

Clemson’s business and engineering librarians have partnered to create a two-step, efficient process to assist Bioengineering Senior Design students in understanding patents and patent searching and market research. Clemson University’s required two-semester Bioengineering Senior Design program matches teams of students with regional clinicians to develop biomedical devices that they research, design, prototype, and test. In the first semester of the program, in which the business and engineering librarians are involved, students take BioE4010-Bioengineering Design Theory. BioE4010 is offered in both the Fall and Spring semesters, but enrollment is significantly higher in the fall. For example, in the Fall of 2021 …

Paper Of Record: Modernizing Ownership Disclosures For U.S. Patents, Jonathan Stroud, Levi Lall

West Virginia Law Review

No abstract provided.

Bright Stars Or Unreliable Compasses: Navigating Patent Definiteness During The Fourth Industrial Revolution, N. Thane Bauz

Texas A&M Journal of Property Law

This Article traces the evolution of the definiteness requirement over the course of two centuries. From the time of inventions relating to flour mills, the definiteness requirement evolved into the consequence for drafting uninterpretable claims. Without considering the reasons for this evolution, the Supreme Court in its Nautilus decision returned the standard for assessing definiteness to its root form. Given the consequences are the loss of patent rights, this Article grapples with the Supreme Court’s decision during an era where complex and convergent technologies are more commonplace. The Article also analyzes empirical evidence six years before and six years after …

Patent Inconsistency, Saurabh Vishnubhakat

Indiana Law Journal

Despite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article …

Incessant Influence: Social Networking Sites Are Utilizing Patented Technology To Commandeer Human Emotion And Behavior

Marquette Intellectual Property & Innovation Law Review

None

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

An Empirical Study: Willful Infringement & Enhanced Damages In Patent Law After Halo, Karen E. Sandrik

Michigan Technology Law Review

For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents. The reasoning for this advice: if there is no pre-suit knowledge of a patent, then it is nearly impossible for a patent holder to prove that enhanced damages are warranted. Pre-suit knowledge is a prerequisite for a finding of willful infringement, which is itself a prerequisite for awarding enhanced damages. The median patent damages award is around ten million dollars, and large companies like Intel, Teva Pharmaceuticals, Microsoft, and Abbott Laboratories have all recently faced billion-dollar patent infringement judgments. In this landscape, a …

Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair

Utah Law Review

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

Gimme A Break: The Patent Term Restoration Act Should Give Environmental Innovators A Chance To Catch A (Cleaner) Breath, Gabrielle Gravel

Journal of Intellectual Property Law

There is an abundance of frightening data painting a grim picture of Earth’s future. Humans have undoubtedly left a carbon footprint so deep, it will take drastic measures to undo our damage. To continue enjoying life as we know it, we humans must shift our focus to the powerful minds of creators and engineers to find ways to untangle our manmade webs. To generate interest and attract the best and brightest to do the challenging and time-consuming work of environmental inventions, the first step is to provide a greater incentive. This note calls upon the U.S. Patent and Trademark Office …