Law Commons^™

School Boy's Tricks: Reasonable Cybersecurity And The Panic Of Law Creation, David S. Levine

Washington and Lee Law Review Online

No abstract provided.

The Psychology Of Patent Protection, Stephanie Plamondon Bair

Faculty Scholarship

This Article offers the first comprehensive assessment of the major justifications for our patent system using a behavioral psychology framework. Applying insights from the behavioral literature that I argue more accurately account for the realities of human action than previous analytical tools, I critically evaluate each of the major justifications for patents — incentive theory, disclosure theory, prospect theory, commercialization theory, patent racing theory, and non-utilitarian theories. I ask whether our current patent system is an effective regime for meeting the stated goals of these accounts. When the answer to this question is no, I again turn to the behavioral …

Pay The Troll Toll: The Patent Troll Model Is Fundamentally At Odds With The Patent System's Goal Of Innovation And Competition, Grace Heinecke

Fordham Law Review

Patent litigation has multiplied sixfold since the 1980s, with the last few years seeing an unprecedented number of patent lawsuits. When an inventor receives a patent, the U.S. Constitution grants him a monopoly for a limited number of years to reward him for his investment of time and resources and to incentivize him to continue innovating, which ultimately benefits society. However, the emergence of a litigious character, deemed the “patent troll,” has led to the patent system’s hindrance of innovation, a result that is at odds with the primary goal of patent law. Patent trolls exploit weaknesses in the patent …

Ex Parte Seizures And The Defend Trade Secrets Act, Eric Goldman

Washington and Lee Law Review Online

Congress is considering the Defend Trade Secrets Act, which would create a new federal trade secret civil cause of action. The Act includes a quirky and unprecedented ex parte procedure for trade secret owners to obtain a seizure order. The seizure provision applies in, at best, a narrow set of circumstances, and it oddly attempts to protect intangible trade secrets by seizing chattels. Despite procedural safeguards, the seizure provision also enables anti-competitive misuse.

More generally, the fact-based disputes that inevitably must be resolved in trade secret litigation make trade secrets an especially poor basis for ex parte actions. As a …

The Dtsa: The Litigator's Full-Employment Act, Sharon K. Sandeen

Washington and Lee Law Review Online

Civil litigation is expensive, both for the party bringing suit and the party that must defend against such claims. For a variety of reasons, not the least of which are the usual requests for preliminary relief and protective orders, trade secret litigation is particularly expensive. These costs can have a crippling effect on small businesses and start-up companies that are accused of trade secret misappropriation, often resulting in litigation expenses that exceed the alleged harm to the plaintiff. Such litigation is particularly costly and unjust in cases where the plaintiff asserts rights that, due to common misunderstandings about the limited …

Response: Systems Of Human And Intellectual Capital, Mark Mckenna, Brett F. Frischmann

Mark P. McKenna

This essay reviews Orly Lobel's article The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property. It commends Professor Lobel for outlining the contours of the “new” field of human capital law, and for emphasizing the potential consequences of the growing enclosure of cognitive capacities in contemporary markets. From this starting point the essay makes two modest suggestions for researchers. First, it suggests that those building on Lobel’s work consider more contextual description and evaluation of human and intellectual capital production systems. Doing so would avoid overly abstract, macro-level analysis that is often divorced from reality and …

Trade Secrets, Trade, And Extraterritoriality, Elizabeth A. Rowe, Daniel M. Mahfood

Elizabeth A Rowe

When a foreign individual or company misappropriates the trade secrets of an American company, and the acts of misappropriation occur entirely outside of the United States, the trade secret law of the United States generally will not apply. This represents the principle of extraterritoriality, and identifies a major vulnerability for companies that choose to conduct operations or engage in other business abroad. In such situations, the substantive and procedural laws of another country are likely to define whether the allegedly misappropriated information is protected and has been misappropriated. Providing a domestic forum to prosecute extraterritorial infringement would substantially benefit domestic …

Section By Section Commentary On The Tpp Final Ip Chapter Published 5 November 2015 – Part 2 – Copyright, Kimberlee G. Weatherall

Kimberlee G Weatherall

This note comments on the TPP copyright provisions (final text). It also compares each provision to multilateral and bilateral treaties. The material here is necessarily preliminary and does not purport to be complete. It is published on the basis that it may assist others’ analysis and commentary

Section By Section Commentary On The Tpp Final Ip Chapter Published 6 November 2015 – Part 1 – General Provisions, Trade Mark, Gis, Designs, Kimberlee G. Weatherall

Kimberlee G Weatherall

This note comments on the TPP general provisions and rules on trade mark, GIs, and designs. It also compares each provision to multilateral and bilateral treaties. The material here is necessarily preliminary and does not purport to be complete. It is published on the basis that it may assist others’ analysis and commentary.

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

Do Abstract Ideas Have The Need, The Need For Speed?: An Examination Of Abstract Ideas After Alice, Maria R. Sinatra

Fordham Law Review

Imagine you invented a way to perform mathematical calculations all over the world simultaneously. Now, imagine that you cannot patent your invention because it was compared to, and found to contain, the same idea as an abacus. This scenario was the outcome of Alice Corp. v. CLS Bank International.

In coming to its decision in Alice, the U.S. Supreme Court adopted a two-part test that it had previously utilized to analyze the patentability of laws of nature to determine whether the patent at issue met the subject matter patentability standards of § 101 of the Patent Act. Determining …

Section By Section Commentary On The Tpp Final Ip Chapter Published 5 November 2015 – Part 3 - Enforcement, Kimberlee G. Weatherall

Kimberlee G Weatherall

This note comments on the TPP IP enforcement provisions (final text). It also compares each provision to multilateral and bilateral treaties. The material here is necessarily preliminary and does not purport to be complete. It is published on the basis that it may assist others’ analysis and commentary. Note: version 0.1 adds fn 1 reference to Bridy on ISP safe harbors.

Set The Statutes Straight: Amending The Lanham Act To Dispel The Confusion Regarding Reverse Confusion, Inna Kaminer

Loyola of Los Angeles Entertainment Law Review

The typical case of alleged trademark infringement, i.e., “forward confusion,” involves a larger and more established “senior user” and a smaller and less powerful “junior user.” The secondary junior user wrongfully uses the first senior user’s mark as its own, and thus benefits from the senior user’s more established goodwill. In ruling on a senior user’s trademark infringement claim, the court will use a set of “likelihood of confusion” factors to determine if consumers are confusing the junior user’s goods for that of the senior. Each circuit’s factors vary, but they are harmonious. The issue that this Note explores is …

Some Key Things Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony Luppino, Malika S. Simmons

Lawrence J. Trautman Sr.

New business formation is a powerful economic engine that creates jobs. Diverse legal issues are encountered as a start-up entity approaches formation, initial capitalization and fundraising, arrangements with employees and independent contractors, and relationships with other third parties. The endeavors of a typical start-up in the United States will likely implicate many of the following areas of law: intellectual property; business organizations; tax laws; employment and labor laws; securities regulation; contracts and licensing agreements; commercial sales; debtor-creditor relations; real estate law; health and safety laws/codes; permits and licenses; environmental protection; industry specific regulatory laws and approval processes; tort/personal injury, products …

The Case Against Federalizing Trade Secrecy, Christopher B. Seaman

Christopher B. Seaman

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights. This Article engages in the first systematic critique of the claim that federalizing …

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British …

Freedom Of Expression And Morality-Based Impediments To The Enforcement Of Intellectual Property Rights, Marc J. Randazza

Nevada Law Journal

No abstract provided.

Doctrinal Approaches To The Animal Breeders’ Rights Granting, Diana V. Ivanova Dr., Julia A. Fedorova

Diana V. Ivanova Dr.

In the paper we analyze foreign and national doctrinal approaches to the animal breeders’ rights granting. Its genesis, legal nature of animal breed, and location of related legal norms are considered. We try to justify the possibility of granting animal breeders’ rights in the Republic of Belarus.

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley

Law Faculty Popular Media

This short article discusses the Bankruptcy Code's unusual treatment of certain intellectual property licenses. First, it gives a brief overview of § 365(n) of the Bankruptcy Code. It then provides a short analysis of a difficult but important question: If a licensee of a debtor’s intellectual property opts to retain its license rights under § 365(n), who should receive the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor in bankruptcy? The answer that has emerged in some of the case law is somewhat surprising -- after providing nuanced …

Copyright In Pantomime

Brian L. Frye

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that …

The Supreme Assimilation Of Patent Law, Peter Lee

Peter Lee

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias

Maurer Theses and Dissertations

This work analyzes a distinctive characteristic of the globalizing Brazilian legal profession. Namely, intellectual property (IP) lawyers who once were leaders in opening the Brazilian economy and were key players in cross-border transactions are now losing ground to their peers with an expertise in international trade. The thesis of this article is that the manner in which Brazilian lawyers are being educated is in shambles. Generally speaking, Brazilian legal education has, overall, become degraded and provincial. Yet, Brazilian international trade lawyers, unlike Brazilian IP-lawyers, have overcome their deficient legal training by seeking legal education abroad. By traveling overseas, especially to …

The Human Genome: A Patenting Dilemma, Pamela Docherty

Akron Law Review

This Comment will address the conflict between the U.S. patent laws and biotechnology by focusing on the NIH patent application.

The first part of this Comment discusses the objectives and statutory requirements of the patent system, which the NIH application purportedly did not meet. Next, this Comment focuses on the debate between NIH and its detractors. It explains NIH's reasons for its actions and discusses the criticisms leveled at the agency. Finally, this Comment presents solutions to the problems that have been uncovered by this debate regarding the patentability of genes.

Hilmer Doctrine And Patent System Harmonization: What Does A Foreign Inventor Have At Stake?, Kevin L. Leffel

Akron Law Review

The following discussion begins with a historical analysis that outlines the boundaries and illustrates the basis of Hilmer doctrine. Examples of the effects of Hilmer doctrine are presented as part of that discussion. Next, effects of the application of Hilmer doctrine after an interference are discussed followed by an analysis of the Patent Harmonization Act of 1992.

Eldred & The New Rationality, Brian L. Frye

Law Faculty Scholarly Articles

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Peter K. Yu

In From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, I criticized the ineffectiveness and short-sightedness of the U.S.-China intellectual property policy. As I argued, the approach taken by the administration in the 1980s and early 1990s had created a cycle of futility in which China and the United States repeatedly threatened each other with trade wars only to back down in the eleventh hour with a compromise that did not provide sustainable improvements in intellectual property protection. Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul …

Human Creativity For Economic Development: Patents Propel Technology, Robert M. Sherwood

Akron Law Review

Intellectual property both leads and lags the development of new technology. It lags in the sense that developments usually precede the law. Today science is accelerating so rapidly that the lawyers and policy analysts can barely grasp what the new questions are, much less supply answers. How are we to adapt the historic forms of protection to deal with new things like patents for genetically modified life forms, or for the Internet? Yet, this process of adaptation is not new. There was a time when maps were all the rage in Europe and judges puzzled over how much difference was …

Know Thyself As You Know Thy Enemy: Setting Goals And Keeping Focus When Mediating Ip Disputes, Michael H. King, Peter N. Witty

Akron Law Review

Therefore, while we briefly discuss the expected improvements to the mediation process following the enactment of the Uniform Mediation Act, we want to put aside the reality that mediation can work in some situations and instead focus on identifying and overcoming various impediments to a successful mediation. Specifically, we want to address two points: (1) the importance of defining realistic objectives for the process, and (2) the importance of staying focused on obtaining those objectives.