Law Commons^™

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Georgia Law Review

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Securing Patent Law, Charles Duan

Belmont Law Review

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

Parallel Play: The Simultaneous Professional Responsibility Campaigns Against Unethical Ip Practitioners By The United States And China, Mark A. Cohen

Akron Law Review

“Parallel Play: The Simultaneous Professional Responsibility Campaigns Against IP Practitioners by the United States and China” describes efforts by the United States Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many of these bad faith filings have originated from China. In both countries, these bad faith activities have imposed significant burdens on IP agencies, the courts, and legitimate rights holders. The campaign is likely the largest professional responsibility campaign undertaken by an IP agency, and the largest cross-border IP disciplinary …

The Future Of Healthcare Is Generic: Expanding Hatch-Waxman To Equitably Regulate The Healthcare Products Industry, George Encarnacion Jr.

DePaul Journal of Health Care Law

This article serves to address the statutory disconnect in the healthcare industry regarding generic products. There has been marked success in the generics market pertaining to pharmaceutical drugs, but the same cannot be said for medical devices and, in more recent times, biosimilars. The end result for consumers is higher product prices, limited access of care, and a more burdensome healthcare system. This article explores the statutory history of drug and medical device approval and production. It also explores differences between modern regulation of generic drugs and generic medical devices, focusing on key issues of FDA approval, consumer safety and …

Thaler V. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), Matthew Messina

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The Inherent Monetary Incentive Of Intellectual Property Rights And The Failure Of Intellectual Property Waivers To Recognize This Motive, Ellaheh D. Sims

Barry Law Review

No abstract provided.

The Perks Of Being Human, Max Stul Oppenheimer

Washington and Lee Law Review Online

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. …

Determining What’S Not Obvious: Should A Reasonable Expectation Of Success Invalidate Patent Applications?, Natalie Peters

University of Massachusetts Law Review

Patents are necessary to incentivize innovation because they grant owners the right to protect inventions. To be patentable, an invention must be useful, it must be novel, and it must not be obvious. But the judiciary has struggled to apply the latter requirement, non-obviousness, particularly for highly technical innovations subject to FDA regulations. For these innovations, the progression through the regulatory jungle can take ten to twenty years and millions of dollars (2.6 billion for a pharmaceutical drug). The complexities of the regulatory process can also render an innovation unprotected by patent rights because, by the end of the process, …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Comparative Intellectual Property Protection For Marijuana: United States Vs. The European Union, Jillian Gosser

Global Business Law Review

Protecting intellectual property relating to marijuana is a complicated endeavor. The federal ban on marijuana renders trademark protection difficult at best, and patent protection, while available, still rife with complications. In Europe, the laws pose similar challenges in the protection and enforcement of marijuana related intellectual property. This Note presents a comparative law analysis of the various ways marijuana related intellectual property may be protected in the United States and Europe. Different types of intellectual property protection explored include utility patents, design patents, trademarks, plant patents, Plant Variety Protection Act coverage, and Community Plant Variety Act coverage. This Note explores …

Information Theory And Patent Documents, W. Michael Schuster

Akron Law Review

Recent scholarship has expanded the scope of analytical tools available to patent law researchers. The foundation of information theory published by Claude Shannon has been applied to textual analysis to determine the similarities of patents and to assess a patent’s value. This article presents a theoretical application of information theory to quantify lexical ambiguity and originality in innovation within patent law.

Does Size Matter? Nanoscale Particle Size As An Indicator Of Inherency In Nanopharmaceutical Patent Validity, Kirsten Fehlan

Georgia State University Law Review

Scientific and technological advances in nanopharmaceuticals bring the doctrine of inherent obviousness to a head. On the one hand, nanotechnology promises to offer novel ways to target and treat traditionally incurable diseases by operating at a scale that is comparable to the scales that most biological systems use. On the other hand, nanotechnology inventions that result in improved pharmacokinetic properties are susceptible to validity challenges based on inherent obviousness.

Inherency and obviousness are two independently recognized and well-understood principles in United States patent law. Inherency refers to a claimed limitation or feature that is either necessarily present in, or the …

Intellectual Property Rights And Competition Law For Transfer Of Environmentally Sound Technologies, Mahatab Uddin

Pace International Law Review

Battling against climate change, “a common concern of humankind,” is the most prominent global challenge of this century, and Environmentally Sound Technologies (“ESTs”) are the main tools to fight this battle. This article examines the juxtaposed role of Intellectual Property Rights (“IPRs”) and competition laws in facilitating wide-scale innovation and transfer of ESTs in developing and least developed countries. This article covers diverse IPRs, including patents and trade secrets. The discussion and analysis of the IPRs are based on the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). And the discussion on competition law mainly focuses on competition related …

International Rights Affecting The Covid–19 Vaccine Race, Samantha Johnson

University of Miami Inter-American Law Review

The impact of the COVID–19 pandemic has been felt world-wide, and despite having several vaccines in the market at this point, there are still issues of accessibility for certain countries. International intellectual property law has been a breeding ground for the exploration of intellectual curiosity and creation as it provides strong protections to creators. These strong protections have allowed for the monopolization of certain goods, such as vaccines, under the concept of patents. While patents are important to incentivize pharmaceutical companies to create life–saving medicines, these protections have also become a barrier for access to medicines, especially in less–developed countries. …

Patent Performativity, Dan L. Burk

Journal of Intellectual Property Law

Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through …

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 …

In Your Own Defense: The Importance Of Immuno-Oncology And The Problem With Patenting Under The "Laws Of Nature", Laura Schwartz

Pace Law Review

No abstract provided.

Justice Breyer And Intellectual Property Law

Marquette Intellectual Property & Innovation Law Review

None

Sabermetrics And Patents?: Open Source, Property Protections, And Alice V. Cls Bank

Marquette Intellectual Property & Innovation Law Review

None

Treating Diagnostics: Protecting In Vitro Diagnostic Testing In An Uncertain § 101 Landscape, Emily Iroz Rich

Akron Law Review

Beyond question, medical diagnostic tests, they save lives. The diagnostic tests also contribute to the overall health of the U.S. economy. However, the current state of subject-matter eligibility for patent protection does not incentivize the research and development of these life-saving tools. Previous legislative and judicial efforts to fix subject-matter eligibility have failed. This article proposes a diagnostic patent act to allow the protection of in vitro diagnostic tests. The proposed diagnostic patent act would include safeguards to allow adequate access to fundamental research while incentivizing the return of investment to the patent holder. Safeguards would include exceptions to patent …

"Prep"Aring For A Challenge To Government-Owned Patents, Caleb Holland

Catholic University Law Review

The United States Government owns one of the largest patent estates in the world, but it rarely brings suit for patent infringement. To understand why that may be, this paper looks critically at the Government as a patent holder. Specifically, the paper reviews the fundamentals of American patents and explores the intricacies unique to the Government as an entity that both grants and holds patent rights. The paper examines the historical progression of how the United States Government positions itself with regard to its patents, tracing this evolution from Constitutional origins to more recent statutory refinements. Finally, the paper looks …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Georgia State University Law Review

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff

Notre Dame Law Review

This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in …

Software Patent In U.S. Law, Mohammed Hassan Abdullah

UAEU Law Journal

The handling of the patent system is at variance in the American system with that in the European Union's system, where the American system began to allow software protection under its patent system in addition to copyright protection while the European Union's Patent Office accepts this tendency some member States reject it. This affects negatively the level of protection and its nature, which should be available in a suitable and balanced manner between the different legal systems due to the nature of software as a countries' trans-border product. Thus, this research study calls for a special system of protection since …

United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller

Catholic University Law Review

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

The Problem Of Recourse To Arbitration In Intellectual Property Disputes Within National Laws: Comparative Study On Patent, Trademark And Copyright Disputes, Mahmoud Ismail Abu Turabi

UAEU Law Journal

This study tries to answer the following question: could the intellectual property rights being a subject of arbitration in case of dispute? To answer the question, we need to study the legal nature of the intellectual property and the legal basic to get protection. It is a comparative study between Jordanian law and French law.

Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick

St. John's Law Review

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …

Defensive Patent Litigation Strategy For Chinese Companies: A Review Of The Extraterritorial Reach Of The United States Patent Laws, Lisa D. Zang

Fordham Intellectual Property, Media and Entertainment Law Journal

China has experienced an extraordinary transformation from a poor, developing nation into a global economic power. With China becoming one of the U.S.’s largest trading partners, however, Chinese companies have become increasingly enmeshed in U.S. patent litigations. Although the U.S. patent laws are intended only to govern conduct within the nation’s borders, the line between domestic and foreign economic activities has become increasingly blurred. Modern sales transactions often span multiple countries, and in such situations, it may not be clear whether the U.S. patent laws apply. For Chinese companies facing exposure to U.S. patent litigations, it is critical to understand …

The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao

Touro Law Review

No abstract provided.

Revisiting The License V. Sale Conundrum, Nancy S. Kim

Loyola of Los Angeles Law Review

This Article seeks to answer a question that has become increasingly more important as commerce moves from the tangible to the intangible—to what extent may a business use a contract to control the use of a fully paid product? The characterization of a transaction as a license or a sale determines what may be done with a product, who controls how the product may be used, and what happens in the event of a dispute. The past generation has seen a seismic shift in the way businesses distribute their products to consumers. Businesses often “license” rather than “sell” their products, …