Law Commons^™

Will Fda Data Exclusivity Make Biologic Patents Passé?, Vincent J. Roth Esq

Vincent J Roth Esq

Much controversy has ensued over the current 12 year data exclusivity period afforded biosimilars pursuant to the Biologics Price Competition and Innovation Act of 2009 (the “BPCI”) that was recently enacted in March 2010, as part of President Obama’s Patient Protection and Affordable Care Act (the “PPACA”), to create a biosimilar market in the US. In fact, the BPCI, itself, has been controversial and just barely survived judicial scrutiny when the US Supreme Court upheld the PPACA on June 28, 2012 in a 5-4 vote. Many commentators speculate whether data exclusivity will overtake patents as the preferred method of intellectual …

Necessity Is The Mother, But Protection May Not Be The Father Of Invention: The Limited Effect Of Intellectual Property Regimes On Agricultural Innovation, A. Bryan Endres, Carly E. Giffin

A. Bryan Endres

Standard innovation theory assumes that intellectual property protection is a prerequisite to the development of technological advances. Stretching back to the writing of the Constitution, a strong intellectual property system, comprised of both laws that establish intellectual property protection and a judicial or other adjudicative system to enforce the property right, has been considered necessary to stimulate innovation for the benefit of society. While not directly challenging this traditionally held belief, the authors used empirical data to test the assumption in the context of agriculture. This paper analyzed twenty years of agricultural production data from Argentina, Brazil, China, India, and …

Mistaken Assumptions: The Roots Of Stanford V. Roche In Post-War Government Patent Policy, Sean M. O'Connor

Sean M. O'Connor

The Bayh-Dole Act of 1980 was built on a mistaken assumption that “contractors”—recipients of federal funding—were securing assignments of inventions from their employees. The roots of this assumption go back to a 1947 Attorney General report on government patent policy that glossed over its own detailed finding that universities were in many cases not doing so. Because other types of contractors, including private firms and nonprofit research institutions, generally were securing title, the report concluded that “most” contractors were doing so. The report itself was the culmination of a century of confusing and conflicting legal developments with regard to both …

Trademark Owner As Adverse Possessor, Jake Linford

Jake Linford

There is an ongoing debate over whether or not a trademark is “property,” and what type of rights a trademark properly secures. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes, and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. This article takes the middle course and approaches the issue by mining the analogy between the acquisition of trademark protection and the doctrine of adverse possession.

Courts and scholars have …

Patent Litigation And The Internet, John R. Allison, Emerson H. Tiller, Samantha Zyontz

John R. Allison

Using both univariate comparisons and multiple regression techniques, we find that: (1) Internet patents and their two subtypes, broad Internet business models and narrower Internet business techniques, were litigated at a far higher rate than other (non-Internet patents, or NIPs)—they were between 7.5 and 9.5 times more likely to end up in infringement litigation, depending on the model we used. (2) Within the category of Internet patents, those on business models were litigated at a significantly higher rate than those on business techniques. (3) Across both Internet patents and NIPs, patents issued to small entities, especially individuals and small businesses, …