Law Commons^™

It’S The End Of The Biological Patent World As We Know It, And Consumer Watchdog Feels Fine: How Consumer Watchdog Is Attempting To Kill The Future Of Horticultural Research, George R. Holton

George R Holton

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

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 …

National Treatment, National Interest And The Public Domain, Margaret Ann Wilkinson

Margaret Ann Wilkinson

The concept of the "public domain" is a powerful rhetorical element in he policy debates involving intellectual property. But is it a stable and useful concept for analyzing information issues? Can the notion of the public domain and the concept of the information commons be separated? Is the notion of the public domain merely another way of expressing the public interest? This paper canvassed the literature, seeking a theoretically consistent definition for public domain that was equally applicable across the copyright, trademark and patent spheres. The analysis demonstrated that there is no such construct. The paper also reviews the findings …

Layered Patent System, Michael Risch

Michael Risch

Do Patent Licensing Demands Mean Innovation?, Robin C. Feldman, Mark A. Lemley

Robin C Feldman

Patentable Subject Matter As A Policy Lever, Amy L. Landers

Amy L. Landers

Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term “invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are …

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.

Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in …

Patenting Physibles: A Fresh Perspective For Claiming 3d-Printable Products, Daniel Harris Brean

Daniel Harris Brean

Ending Unreasonable Royalties: Why Nominal Damages Are Adequate To Compensate Patent Assertion Entities For Infringement, Daniel Harris Brean

Daniel Harris Brean

Empirical Studies Of Claim Construction, Jonas Anderson

J. Jonas Anderson

International Cooperation And The Patent-Antitrust Intersection, Stephen Yelderman

Stephen Yelderman

Commentators have long recognized the need to coordinate questions at the patent-antitrust intersection with other policy levers available under patent law. In the international context, however, control over patent policy has been fractured and entrusted to diverse decisionmakers. Many details of patent law are tightly coordinated by international agreement, while others related to antitrust are left to national discretion. This Article evaluates the consequences of this fracture, and notes ways in which the prevailing treaty regimes (the Paris Convention and the TRIPS Agreement) distort incentives for national policymaking. National discretion at the patent-antitrust intersection can be expected to result in …

Submission On The Ip Chapter Of The Korea-Australia Free Trade Agreement, Kimberlee G. Weatherall

Kimberlee G Weatherall

Patent Demands & Startup Companies: The View From The Venture Capital Community, Robin C. Feldman

Robin C Feldman

Discretionary Injunctive Relief For Patent Infringement: Partial Remuneration After Ebay And Its Implications For The Developing World, Richard Li-Dar Wang

Richard Li-dar Wang

Will The “Nexus” Requirement Of Apple V. Samsung Preclude Injunctive Relief In The Majority Of Patent Cases?: Echoes Of The Entire Market Value Rule, Daniel Harris Brean

Daniel Harris Brean

The Doctrine Of Equivalents And Interchangeability In The United States, Taiwan And China, Tien-Pang Chang, Li-Dar Wang, Shang-Jyh Liu

Richard Li-dar Wang

The United States, Taiwan and China have similar systems for determining patent infringement under the doctrine of equivalents. The courts in these countries apply the test of interchangeability in finding infringement under the doctrine of equivalents. However, the courts in the United States, Taiwan and China evaluate interchangeability in different ways. In the United States, the interchangeability is one important factor for determining equivalent infringement in addition to the function, way and result factors in the triple identity test. Nevertheless, the court does not necessarily have to consider interchangeability and can’t rely only on the interchangeability factor to find equivalent …

Mark Mckenna Quoted In Forbes Article On Apple Samsung Patent Trial, Mark Mckenna

Mark P. McKenna

Mark McKenna was quoted in the Forbes article Apple Gets $290.5 Million In Damages From Samsung In Patent Penalty Review — But It’s Not Over Yet by Connie Guglielmo

Mark Mckenna Quoted In Usa Today Article Apple Gets $290m In Samsung Patent Dispute, Mark Mckenna

Mark P. McKenna

Mark McKenna was quoted in the USA Today article Apple gets $290 million in Samsung patent dispute by Scott Martin. "Today's damage award was much larger than Samsung had argued for, but still significantly less than the $400 million vacated by Judge Koh after the first trial," said Mark McKenna, a law professor at the University of Notre Dame.

What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna

Mark P. McKenna

This paper was published as a chapter in Intellectual Property and Information Wealth (Peter Yu, ed., Praeger 2007). The chapter describes several doctrines that courts have developed to limit the scope of trademark protection where there is a risk of interference with the patent or copyright schemes. It also suggests that courts have in some cases overemphasized the subject matter of protection and underemphasized parties' ability to use trademark law to capture the types of economic benefits for which patent and copyright protection are presumed necessary.

Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer

Joseph P. Bauer

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors. The central question addressed by this …

Tpp – Australian Section-By-Section Analysis Of The Enforcement Provisions Of The August Leaked Draft, Kimberlee G. Weatherall

Kimberlee G Weatherall

This paper analyses the leaked 30 August 2013 text of the TPP IP Chapter from an Australian perspective, focusing on the enforcement provisions only. The goal is to assess the compatibility of provisions in the current draft with Australian law and Australia’s international obligations: including TRIPS and the Australia-US Free Trade Agreement (AUSFTA).

Reading the IP provisions of the TPP IP chapter leak dated August 2013 is a maddening, dispiriting process. The provisions are written like legislation, not treaty, suggesting a complete lack of good faith and trust on the part of the negotiating countries. There are subtle tweaks of …

Profits As Commercial Success, Andrew Blair-Stanek

Andrew Blair-Stanek

Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts instead should use profits as the proper measure of an invention’s commercial success. Current jurisprudence’s use of revenue reflects the flawed premise that firms maximize revenues rather than maximizing profits. As a result, courts will often find commercial success when the financial data suggest otherwise and vice versa. This Note finds the accounting and economic issues involved to be insubstantial, …

Owning Enlightenment: Proprietary Spirituality In The 'New Age' Marketplace, Walter Effross

Walter Effross

This article analyzes recent attempts made by the Arica Institute, the Church of Scientology, and Star's Edge - reaching, in each case, the relevant Circuit Court of Appeals - to apply intellectual property law to prevent the unauthorized dissemination of their spiritual teachings and techniques. As the article details, such concerns have been raised in connection with a wide range of traditional and modern practices, including Zen, Kabbalah, Yoga, Sufism, Christian Science, est, Reiki, the Gurdjieff Work, A Course in Miracles, and Transcendental Meditation. The article draws on a variety of primary sources, including trial transcripts, appellate pleadings, Web sites, …

Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang

Richard Li-dar Wang

Active metabolite patents have been instrumental for brandname pharmaceutical companies to maintain their exclusivity even after the drug patents expire. This strategy obstructs market entry of generic medicine and reduces affordable drugs. The authors review jurisprudence from the United States, Europe, India, and Taiwan in search for practical solutions to confront this problem. Given the unique pharmacological value that active metabolites may possess, patent protection for those purified or synthesized in vitro should be preserved, but for those produced by metabolism should be declined. Except India, most countries under investigation comport with this dichotomy. Their jurisprudence may be subsumed into …

Communities Of Innovation, Michael Mattioli

Michael Mattioli

This Article examines and evaluates the theory that patent holders privately self-correct the government’s excessive apportionment of patent rights by means of various cooperative efforts including patent pools, research consortia, and similar licensing collectives. According to some experts, these efforts are proof that market participants have the wisdom and the will to collectively disarm their patent arsenals in order to advance long-term innovation. But until now, this theory of market self-correction has not been evaluated through empirical study. Drawing on interviews and original research, this Article provides an ethnographic view of collective patent licensing episodes. Amidst these stories of success …

Government Choices In Innovation Funding (With Reference To Climate Change), Joshua D. Sarnoff

Joshua D Sarnoff

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Frank A. Pasquale

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Why Copyright Law Lacks Taste And Scents, Leon R. Calleja

Leon R Calleja

This paper explores the resistance in U.S. copyright law to extend copyright protection to scents and tastes, and advances the position that copyright law’s originality and expression requirements limit copyrightable subject matter to expressions that engage both author and audience in a way that requires reflection upon the work—or at least, the capacity for reflection—in a necessarily intersubjective and communicative fashion, what I call a “public dimension.” That the sensations of taste and smell are inescapably immediate and private suggest that they lack the kind of public dimension that visual and audio works exhibit. Indeed, this creates an ineffability characterized …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Katharine Van Tassel

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Asserting Patents To Combat Infringement Via 3d Printing: It's No "Use", Daniel Harris Brean

Daniel Harris Brean