Law Commons^™

San Francisco Declaration On Research Assessment (Dora), The American Society For Cell Biology

Copyright, Fair Use, Scholarly Communication, etc.

There is a pressing need to improve the ways in which the output of scientific research is evaluated by funding agencies, academic institutions, and other parties.To address this issue, a group of editors and publishers of scholarly journals met during the Annual Meeting of The American Society for Cell Biology (ASCB) in San Francisco, CA, on December 16, 2012. The group developed a set of recommendations, referred to as the San Francisco Declaration on Research Assessment. We invite interested parties across all scientific disciplines to indicate their support by adding their names to this Declaration. The outputs from scientific research …

Beyond Confusion?, Stacey Dogan

Shorter Faculty Works

Trademark law is in the midst of an identity crisis. The prevailing economic account of the law has come under sustained attack by scholars, who have both challenged its descriptive accuracy and blamed it for many of the expansions of trademark rights in recent decades. The likelihood of confusion test – long the nucleus of infringement analysis – has been roundly condemned as indeterminate, incoherent, and normatively empty. No one seems to agree about why we have trademark law and how best to implement it. Scholars have cast about for explanations of how we got here and ideas of how …

Exchanging Information Without Intellectual Property, Michael J. Burstein

Articles

Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …

The Need And Justification For A General Competition-Oriented Compulsory Licensing Regime, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

There seems to be little or no discussion about the need of and justification for a general compulsory licensing that could be applicable to all IP laws. This author has previously argued, by referencing to competition law, in 2008 that it is paramount for the WTO to revise the TRIPS Agreement, so as to include substantive grounds for granting compulsory patent licenses. In so doing, the preservation of competition should be factored in as one of the public policy objectives. As a follow-up study this paper takes an IP-internal approach (therefore will only consult competition law in a very limited …

The Bellagio Global Dialogues On Intellectual Property, Joe Karaganis

Joint PIJIP/TLS Research Paper Series

This paper is an account of the Bellagio conferences and of their place within the larger arc of Rockefeller intellectual property work since 2002. In a more limited fashion, it is also an account of the transformation of IP from an obscure legal specialty into a major discourse of power and debate about the shape of globalization. The broadest achievement of the Bellagio series—and of Rockefeller Foundation work more generally in this area—has been to make this debate more open, participatory, and engaged with questions of poverty and human development.

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher J. Buccafusco, Christopher Jon Sprigman, Zachary C. Burns

All 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 …

Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Reviewing The American University Law Review On Extraterritoriality: A Critical Response To Viki Economides, Note, Tianrui Group Co. V. Itc: The Dubious Status Of Extraterritoriality And The Domestic Industry Requirement Requirement Of Section 337(Link), Jonathan Stroud

Articles in Law Reviews & Other Academic Journals

Recently, the Federal Circuit upheld the Commission’s decision to exclude goods based on a trade secret violation that largely happened abroad. The American University Law Review critiqued that decision on two grounds: First, that a presumption against extraterritorial application of U.S. law applied; and second, that licensing alone could not establish a domestic industry. The American University Law Review's critique remains incomplete, however, as the Federal Circuit correctly decided the case for at least two reasons. first, the Federal Circuit correctly applied the “extraterritorial presumption” canon of construction; and second, the recent Federal Circuit decision in InterDigital Communications LLC v. …

The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien

Faculty Publications

Panel discussion on the NPEs, patent damages, including review of expert testimony, the effect of RAND and other policies on standard-setting cases at the ITC and in district courts, and other patent remedy issues.

The Ip Law Book Review, Vol. 3 #1, November, 2012, William T. Gallagher, Marc H. Greenberg

Intellectual Property Law

REVIEWS AND REVIEWERS:

MORAL RIGHTS: PRINCIPLES, PRACTICE AND NEW TECHNOLOGY, by Mira T. Sundara Rajan Reviewed by Cyrill P. Rigamonti, University of Bern

CLEAN TECH INTELLECTUAL PROPERTY: ECO-MARKS, GREEN PATENTS, AND GREEN INNOVATION, by Eric L. Lane Reviewed by Joshua D. Sarnoff, De Paul University College of Law

COMPLEX COPYRIGHT: MAPPING THE INFORMATION ECOSYSTEM, by Deborah Tussey Reviewed by Shubha Ghosh, University of Wisconsin Law School

IMITATION TO INNOVATION IN CHINA: THE ROLE OF PATENTS IN BIOTECHNOLOGY AND PHARMACEUTICAL INDUSTRIES, by Yahong Li Reviewed by Benjamin P. Liu, John Marshall Law School

The Inalienable Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …

Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes

Articles

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

All Faculty Scholarship

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …

Rough Justice: Extending The Dmca's Self-Policing “Take-Down” Model Beyond Copyright Law, Timothy Cahn, Ryan Bricker

Intellectual Property Law

No abstract provided.

Privacy And Data Rights In An Information Economy, John Tomaszewski, Sharon Anolik

Intellectual Property Law

No abstract provided.

Juror's Responses To Music Copyright's Lay Listener Test, Jamie Lund

Intellectual Property Law

No abstract provided.

11th Annual Conference On Recent Developments In Intellectual Property Law And Policy, Marc Greenberg, William T. Gallagher, Chester S. Chuang

Intellectual Property Law

No abstract provided.

Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp

All Faculty Scholarship

Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.

FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is …

The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Has The Architectural Works Copyright Protection Act Worked?: An Architect’S Perspective, Robert Greenstreet

Architecture Faculty Articles

Attorneys can help their designer clients by recommending that all architectural work, however modest in design aspiration, be systematically copyrighted to protect against not only unauthorized use but also the threat of ownership challenges by competitors.

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Faculty Publications

No abstract provided.

Intellectual Property Training And Education For Development, Peter K. Yu

Faculty Scholarship

Written for a symposium addressing the need to construct a positive policy and research agenda for international intellectual property law, this article explores ways to improve the design and delivery of intellectual property training and educational programs. The article draws on the author's experience as the rapporteur for the International Roundtable on WIPO Development Agenda for Academics.

The article begins by reflecting on WIPO’s changing orientation, outlining the principles and goals recognized in its Development Agenda. It emphasizes the need for an expansion of coverage in intellectual property training and educational programs. It also offers guidelines on ways to redesign …

The Private Costs Of Patent Litigation, James Bessen, Michael J. Meurer

Faculty Scholarship

This paper estimates the total cost of patent litigation to alleged infringers. We use a large sample of stock market event studies around the date of lawsuit filings for US public firms from 1984-99. We find that the total costs of litigation are much greater than legal fees and costs are large even for lawsuits that settle. Lawsuits cost alleged infringers about $28.7 million ($92) in the mean and $2.9 million in the median. Moreover, infringement risk rose sharply during the late 1990s to over 14% of R&D spending. Small firms have lower risk relative to R&D.

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

Faculty Scholarship

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 …

Confronting The Crisis In Scientific Publishing: Latency, Licensing And Access, Jorge L. Contreras

Joint PIJIP/TLS Research Paper Series

The serials crisis in scientific publishing can be traced to the long duration of copyright protection and the assignment of copyright by researchers to publishers. Over-protection of scientific literature has enabled commercial publishers to increase subscription rates to a point at which access to scientific information has been curtailed with negative social welfare consequences. The uniformity costs imposed by such over-protection can be addressed by tailoring intellectual property rights, either through legal change or private ordering.

Current open access channels of distribution offer alternative approaches to scientific publishing, but neither the Green OA self-archiving nor the Gold OA author-pays models …

Rights, Not Gifts, For Trusted Intermediaries, Margaret Ann Wilkinson

Law Presentations

No abstract provided.

The Cryptopticon: The Legal, Ethical, And Intellectual Implications Of "Big Data"

Stanley H. Mervis Lecture

No abstract provided.

Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor

Articles

From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And …

Workshop On Research And Resource Commons In Scientific Research: Final Report, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

In November of 2011, the Washington College of Law at American University convened and hosted a two-day workshop in collaboration with the Creative Commons to develop a strategy for promoting a commons or scientific research and related resources. The workshop brought together interested stakeholders from across the scientific research enterprise: scientists, administrators, librarians, publishers, societies, technologists, lawyers, policy makers, students, funders, and Open Science advocates, including both U.S. and international representatives. This diverse group discussed the current state of policy and technology as it relates to a scientific research commons, and identified key opportunities and challenges, as well as next …

Finding Invention, Oskar Liivak

Cornell Law Faculty Publications

One of the biggest problems plaguing modern patent law is its inability to provide predictable and clear exclusive rights. We would improve clarity by simply following the patent statute and extending exclusion only to "the patented invention." That suggestion, as reasonable as it may sound, is actually quite radical to the dominant patent law orthodoxy. It is not even clear under the dominant patent law orthodoxy what it would mean to limit patent scope to the invention, but it is generally presumed that it must lead to unacceptably narrow patents. Thus, even if it provides clarity, the invention is thought …