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Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney Oct 2018

Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney

Glynn Lunney

Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, …


On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr. Jul 2018

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr.

Glynn Lunney

No abstract provided.


Copyright’S Excess, Glynn Lunney Feb 2016

Copyright’S Excess, Glynn Lunney

Glynn Lunney

No abstract provided.


Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson Jul 2015

Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson

Glynn Lunney

Before the creation of the Federal Circuit in 1982, nonobviousness served as the primary gatekeeper for patents. When patent holders sued for infringement and lost, more than sixty percent of the time, they lost on the grounds that their patent was obvious. With the advent of the Federal Circuit, nonobviousness became a much less difficult hurdle to surmount. From 1982 until 2005, when patent holders sued for infringement and lost, obviousness was the reason in less than fifteen percent of the cases. While obviousness remained formally a requirement of patent protection, there can be little doubt that the Federal Circuit …


E-Obviousness, Glynn S. Lunney Jr. Jul 2015

E-Obviousness, Glynn S. Lunney Jr.

Glynn Lunney

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …


On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr Jul 2015

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr

Glynn Lunney

In their book, Patent Failure: How Judges, Bureaucrats, and Lauyers Put Innovators at Risk, James Bessen and Michael Meurer present an empirical assessment of the costs and benefits of patent protection. Their conclusion is startling. For most industries, the availability of patents discourages innovation.

According to Bessen and Meurer, patents benefit innovators by providing exclusivity and thereby enabling an innovator to capture more rents or profits from their innovation than they could with lead-time or other market mechanisms alone. While innovators can obtain rents from their own Patents, they also face the threat of infringement litigation from Patents held by …


Empirical Copyright: A Case Study Of File Sharing And Music Output, Glynn Lunney Jun 2014

Empirical Copyright: A Case Study Of File Sharing And Music Output, Glynn Lunney

Glynn Lunney

No abstract provided.


The Next Great Copyright Act, Glynn Lunney Apr 2014

The Next Great Copyright Act, Glynn Lunney

Glynn Lunney

No abstract provided.


The Right Of Publicity And The First Amendment: A Fundamental Re-Examination, Glynn Lunney Feb 2014

The Right Of Publicity And The First Amendment: A Fundamental Re-Examination, Glynn Lunney

Glynn Lunney

No abstract provided.


Reverse Payment Settlements: The Patent-Antitrust Intersection Revisited, Glynn Lunney Aug 2013

Reverse Payment Settlements: The Patent-Antitrust Intersection Revisited, Glynn Lunney

Glynn Lunney

No abstract provided.