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Full-Text Articles in Law

The Research Patent, Sean B. Seymore Jan 2021

The Research Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new ...


The Research Patent, Sean B. Seymore Jan 2021

The Research Patent, Sean B. Seymore

Vanderbilt Law Review

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law’s broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new ...


The Machine As Author, Daniel J. Gervais Jan 2020

The Machine As Author, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Machines are increasingly good at emulating humans and laying siege to what has been a strictly human outpost: intellectual creativity.

At this juncture, we cannot know with certainty how high machines will reach on the creativity ladder when compared to, or measured against, their human counterparts, but we do know this. They are far enough already to force us to ask a genuinely hard and complex question, one that intellectual property (“IP”) scholars and courts will need to answer soon; namely, whether copyrights should be granted to productions made not by humans but by machines.

This Article’s specific objective ...


Improvising Intellectual Property In Saigon, David A. Bergan Jan 2020

Improvising Intellectual Property In Saigon, David A. Bergan

Vanderbilt Journal of Entertainment & Technology Law

How does intellectual property become part of the structure of social practice? The traditional answers are enforcement, education, and incentivized self-interest. This Article challenges that understanding by examining the social field of young engineers in Vietnam. In Ho Chi Minh City, Vietnam, intellectual production is not only about producing the legal commodity we call intellectual property. For many young engineers working with multinational companies, it is not about producing a product at all. It is about improving their position in society. Relying on over a year of qualitative, ethnographic fieldwork from 2012 to 2014, this Article develops a critique of ...


Reconceptualizing The Role Of Intellectual Property Rights In Shaping Industry Structure, Peter Lee May 2019

Reconceptualizing The Role Of Intellectual Property Rights In Shaping Industry Structure, Peter Lee

Vanderbilt Law Review

Technological and creative industries are critical to economic and social welfare, and the forces that shape such industries are important subjects of legal and policy examination. These industries depend on patents and copyrights, and scholars have long debated whether exclusive rights promote industry consolidation (by shoring up barriers to entry) or fragmentation (by promoting entry of new firms). Much hangs in the balance, for the structure of these IP- intensive industries can determine the amount, variety, and quality of drugs, food, software, movies, music, and books available to society. This Article reconceptualizes the role of patents and copyrights in shaping ...


Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais Jan 2019

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the ...


Music As A Matter Of Law, Joseph P. Fishman Jan 2018

Music As A Matter Of Law, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Yet things are now changing. Recent judicial decisions ...


The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji Jan 2018

The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law's objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets ...


"Ask Me No Questions": The Struggle For Disclosure Of Cultural And Genetic Resource Utilization In Design, Margo A. Bagley Jan 2018

"Ask Me No Questions": The Struggle For Disclosure Of Cultural And Genetic Resource Utilization In Design, Margo A. Bagley

Vanderbilt Journal of Entertainment & Technology Law

New issues relating to the intersection of design protection and cultural and genetic resource utilization are arising from the confluence of an increased interest in design protection, the sustained allure of exotic cultural expressions, and novel uses of biological and genetic resources in crafting the appearance of articles protected by industrial design rights. As awareness of the many ways in which cultural and genetic resource use and misappropriation can occur is evolving, some developing countries have begun exploring the appropriateness of--and in some cases even instituting--a requirement that a designer disclose the origin of traditional cultural expressions, traditional knowledge, and ...


Reconceptualizing Isds: When Is Ip An Investment And How Much Can States Regulate It, Rochelle Dreyfuss, Susy Frankel Jan 2018

Reconceptualizing Isds: When Is Ip An Investment And How Much Can States Regulate It, Rochelle Dreyfuss, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

Victories by states in two investor-state dispute settlements (ISDS), one involving Uruguay's regulation of tobacco trademarks and the other challenging a doctrine of Canadian patent law, have suggested to some that ISDS is not a threat to state regulation involving intellectual property rights. In this Article, we dispute that notion. We show how these awards open pathways for future disputes and we argue that neither the resolution of these cases nor changes in more recent investment agreements meaningfully alter the threat of ISDS and the chill it imposes on legitimate regulatory activity. We suggest that there would be fewer ...


Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes, Cynthia M. Ho Jan 2018

Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed ...


Socially Responsible Corporate Ip, Janewa J. Oseitutu Jan 2018

Socially Responsible Corporate Ip, Janewa J. Oseitutu

Vanderbilt Journal of Entertainment & Technology Law

Many companies practice corporate social responsibility (CSR) as part of their branding and public relations efforts. As part of their CSR strategies, some companies adopt voluntary codes of conduct in an effort to respect human rights. This Article contemplates the application of CSR principles to trade-related intellectual property (IP). In theory, patent and copyright laws promote progress and innovation, which is why IP rights are beneficial for both IP owners and for the public. Trademark rights encourage businesses to maintain certain standards and allow consumers to make more efficient choices. Though IP rights are often discussed in relation to the ...


Honest Copying Practices, Joseph P. Fishman Jan 2017

Honest Copying Practices, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright ...


How Photographs Infringe, Terry S. Kogan Jan 2017

How Photographs Infringe, Terry S. Kogan

Vanderbilt Journal of Entertainment & Technology Law

Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work--a sculpture, a painting, another photograph--and clicks the shutter. A photograph can also infringe by imitation. In such cases, the ...


Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler Jan 2017

Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler

Vanderbilt Journal of Entertainment & Technology Law

Following the US Supreme Court's endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court's submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving ...


Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu Jan 2017

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

Vanderbilt Journal of Entertainment & Technology Law

This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a ...


The Copy Process, Joseph P. Fishman Jan 2016

The Copy Process, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper.

This Article argues ...


Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt Jan 2016

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years ...


Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji Jan 2016

Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods ...


Of Fences And Definite Patent Boundaries, Deepa Varadarajan Jan 2016

Of Fences And Definite Patent Boundaries, Deepa Varadarajan

Vanderbilt Journal of Entertainment & Technology Law

Patent claims are supposed to mark the boundaries of a patent clearly so that competitors and follow-on innovators can avoid infringement. But commentators routinely lament the failure of patent claims to adequately perform this notice function. In numerous calls for patent reform, courts and scholars have contrasted the indeterminacy of patent claims with the clarity of real property boundaries. The Supreme Court recently echoed this sentiment in "Nautilus v. Biosig Instruments." In "Nautilus," the Court heightened the patent requirement of claim definiteness and reversed Federal Circuit precedent, which had allowed many ambiguous claims to survive invalidity challenges. This Article analyzes ...


Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher Jan 2016

Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher

Vanderbilt Journal of Entertainment & Technology Law

When a foreign state infringes a US-held intellectual property right abroad, it is unclear to what extent the Foreign Sovereign Immunities Act of 1976 (FSIA) bars suit in US courts. The FSIA's already complex commercial activity exception, which governs such actions, was further obfuscated by the Supreme Court's decision in Republic of Argentina v. Weltover, which held that "substantiality" and "foreseeability" could not be used to determine whether a foreign sovereign's conduct had a "direct effect" in the United States, thus warranting jurisdiction in a US court. In the context of IP infringement, where harms may be ...


Authors, Online, Daniel J. Gervais Jan 2015

Authors, Online, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The fate of professional creators is a major cultural issue. While specific copyright rules are obviously contingent and should be adapted to the new realities of online distribution and easy reuse, professional authorship remains necessary. I also believe that to be a professional author, creators need time, which, in turn, does require some form of payment. We need healthy financial flows to allow professional authors to make a decent, market-based living. This requires a move away from one-size-fits-all copyright and the resulting "tug of norms" that requires a shift of the entire policy package to the benefit of one category ...


The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding Jan 2015

The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding

Vanderbilt Journal of Entertainment & Technology Law

In May 2015, members of the World Intellectual Property Organization (WIPO) held a Diplomatic Conference that resulted in the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. The Act modified the Lisbon Agreement (originally created in 1958), extending its previous protection of appellations of origin to geographical indications as well. The United States, which remains a non-party to the Lisbon Agreement, has been adamantly against the expansion of the Agreement to geographical indications. This Note explores the issues surrounding the Geneva Act, the state of the law and international agreements leading up to the Act ...


Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho Jan 2015

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical ...


Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman Jan 2015

Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman

Vanderbilt Journal of Entertainment & Technology Law

While the accomplishments of the biotechnology industry have been substantial, recent technological advances promise to dramatically increase the power and utility of the discipline over the coming years. The term "synthetic biology" has been coined to describe the application of these powerful new tools to the engineering of synthetic genetic sequences and organisms. In essence, synthetic biology represents the next iteration in the ongoing evolution of biotechnology, and hopes run high that in time, the fruits of synthetic biology will dwarf the past successes of conventional biotechnology. There is, however, some concern that the current patent-centric approach to Intellectual Property ...


Trademarked For Death? A Licensee's Trademark Rights After An Executory Contract Is Rejected In Bankruptcy, Philip L. Lu Oct 2014

Trademarked For Death? A Licensee's Trademark Rights After An Executory Contract Is Rejected In Bankruptcy, Philip L. Lu

Vanderbilt Law Review

In 1872, a young man named Claudio Alvarez Lefebre began manufacturing and selling high-quality rum in Cuba under the brand name "Ron Matusalem." In 1948, as the family-run business prospered, the company registered a trademark and corporate logo in the United States. Upon his death, Lefebre left the business-and the secret formulas for making his rum-to his wife and children. By the early 1960s, Lefebre's wife and children had immigrated to the United States, and they split the rum-making business into two separate corporations. These two distinct entities negotiated an executory contract in the form of a franchise agreement ...


Keep Your Friends Close: A Framework For Addressing Rights To Social Media Contacts, Courtney J. Mitchel Oct 2014

Keep Your Friends Close: A Framework For Addressing Rights To Social Media Contacts, Courtney J. Mitchel

Vanderbilt Law Review

A group of entrepreneurial recent college graduates starts a tutoring and test prep company focused on helping promising high school students get an edge on their college applications. Since the cost of print advertising exceeds the group's budget, they each actively promote the business on their personal social media accounts, garnering their first clients. They also create company accounts on Facebook, Linkedln, and Twitter, which clients join for easy, direct communication and quick access to information. Though all the founders contribute occasional posts and encourage their personal social media contacts to join the company accounts, one eventually becomes, in ...


Once More Unto The Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, And The Challenge Of Conflicting Copyright Norms, Carol M. Kaplan Jan 2014

Once More Unto The Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, And The Challenge Of Conflicting Copyright Norms, Carol M. Kaplan

Vanderbilt Journal of Entertainment & Technology Law

In recent decades, studios that own film and television properties have developed business models that exploit the copyrights in those materials in every known market and in all currently conceivable forms of entertainment and merchandising. For the most part, uniform laws and parallel industry cultures permit smooth integration across formats. But theater is different. The work-made-for-hire provisions that allow corporations to function as the authors of the works they contract to create do not easily align with the culture and standard contract provisions of live theater. Conflicts arise when material that begins as a Hollywood property tries to make the ...


How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham Jan 2014

How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court has as of late taken renewed interest in what inventions or discoveries are deserving of entry into the patent system. Section 101 of Title 35 opens the door to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Certain things--now referenced by the Court as "laws of nature, natural phenomena, and abstract ideas"--necessarily fall outside the statute's scope. The question is, why? Not why as a matter of policy, but why as a matter of law. The Court has not yet ...


Appropriation Without Representation? The Limited Role Of Indigenous Groups In Wipo's Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge, And Folklore, Veronica Gordon Jan 2014

Appropriation Without Representation? The Limited Role Of Indigenous Groups In Wipo's Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge, And Folklore, Veronica Gordon

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) is currently engaged in text-based negotiations to develop an international legal instrument, or set of instruments, that will effectively protect traditional knowledge, traditional cultural expressions, and genetic resources. Yet, the people who will arguably be most affected by the ultimate instrument(s)--indigenous peoples and local communities--are not able to fully participate in these negotiations. Instead, WIPO deems them "Observers." They cannot formally present proposals, amendments, or motions, and cannot vote at IGC sessions. Thus, their limited influence implicates questions ...