Law Commons^™

Pleasure Patents, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The United States Patent and Trademark Office has granted thousands of patents for inventions whose purpose is to facilitate the sexual pleasure of their users. These "pleasure patents" raise a range of novel questions about both patent theory and the relationship between law and sexuality more broadly. Given that "immoral" inventions were long excluded from the patent system, and that sexual devices were widely criminalized for much of the past 150 years, how have patentees successfully framed the contributions of their sexual inventions? If a patentable invention must be both new and useful, how have patentees described the utility of …

Whose Progress?, Laura A. Heymann

Faculty Publications

Article I, Section 8, Clause 8 of the U.S. Constitution provides that Congress shall have power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” These words have been the subject of countless books and scholarly articles. Professor Silbey’s engaging contribution [in Against Progress: Intellectual Property Law and Fundamental Values in the Internet Age] to the conversation focuses on one word—progress—and what it should mean as we think about intellectual property law’s motivations and justifications in the twenty-first century.

But even …

Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec

Faculty Publications

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Unregistered Complaints, Christine Galbraith Davik

Faculty Publications

In March, the U.S. Supreme Court handed down its highly-anticipated decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC which resolved a split among U.S. Court of Appeals concerning the point in time when a copyright owner is first able to file suit against an alleged infringer. While at first glance this case may merely appear to be a simple issue of statutory interpretation, namely whether it is upon application for registration or once a determination has been made on registration by the U.S. Copyright Office, I argue this decision is a clarion call for a much-needed amendment to …

The Harmonization Myth In International Intellectual Property Law, Sarah R. Wasserman Rajec

Faculty Publications

There is a dominant narrative in international intellectual property ("IP") law of ever-increasing harmonization. This narrative has been deployed in ways descriptive, prescriptive, and instrumental: approximating the historical trend, providing justification, and establishing the path forward. Appeals to harmonization are attractive. They evoke a worldwide partnership and shared sacrifice to meet the goals of innovation and access to technology through certainty, efficiency, and increased competition through lowered trade barriers. Countries with strong IP protections consistently and successfully tout the importance of certainty and lower trade barriers when seeking new and stronger protections from countries with lower levels of protection. Yet …

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Prioritising Human Development In African Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

The global intellectual property structure has been criticised for requiring developing nations to adopt intellectual property standards that are appropriate for industrialised countries. Some commentators have observed that industrialised nations, such as the United States, developed their economies by borrowing from others, but that through the use of globalised intellectual property standards, they have effectively limited other nations from doing the same. This article does not aim to revisit the question of the suitability of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether, as a general proposition, intellectual property rights should be expanded …

The Intellectual Property Hostage In Trade Retaliation, Sarah R. Wasserman Rajec

Faculty Publications

Intellectual property law has become bound up in a debate about appropriate remedies for violations of the World Trade Organization Agreement. As an alternative to traditional countermeasures that consist of retaliation under the violated agreement, the World Trade Organization ("WTO ") contemplates that violations of one of its covered agreements may be remedied through "cross-retaliation, " or retaliation under another agreement. One form of cross-retaliation has garnered interest in recent years: the threat to suspend intellectual property rights in response to unrelated trade violations

Cross-retaliation through intellectual property rights suspension is theoretically appealing for its potential to avoid problems inherent …

The Law Of 180-Day Exclusivity, Erika Lietzan, Julia Post

Faculty Publications

In 1984, Congress created a statutory pathway for approval of generic drug applications and included an incentive for generic applicants to challenge the patents claiming the reference drugs on which they based their applications. The first generic applicant to file an ANDA with a patent challenge is eligible for 180 days of generic market exclusivity. This article is the fourth in a series of articles describing the resulting body of law, as interpreted and applied by FDA (in regulations, guidances, citizen petition responses, and individual decisions awarding and denying exclusivity) and the courts. The heart of the article is section …

Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Oseitutu

Faculty Publications

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade …

Informal–Formal Sector Interactions In Automotive Engineering, Kampala, Dick Kawooya

Faculty Publications

This chapter provides findings from a Ugandan case study that examined innovation transfers between informal-sector automotive artisans and formally employed researchers at Makerere University’s College of Engineering, Design, Art and Technology (CEDAT). Th e primary site studied was CEDAT’s Gatsby Garage, an automotive workshop where it was found that the informal-sector artisans were central to innovative processes but were at the same time driven more by sharing impulses than by concern for the intellectual property (IP) implications of their work. Based on these findings, it is argued that Ugandan policy-makers need to seek policy tools to support innovation transfers between …

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

A Sui Generis Regime For Traditional Knowledge: The Cultural Divide In Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law.

Developing countries have been more supportive of an international traditional knowledge …

Legal Forms And The Common Law Of Patents, Craig Allen Nard

Faculty Publications

The question of institutional choice is important in all areas of the law, but particularly in the context of patent law with its divergent stakeholders, decentralized variance among industries regarding how the patent system is viewed and relied upon, and a persistent focus on reform in recent years. For over two hundred years, the courts have been the dominant force in the development of patent law. It should therefore come as no surprise to learn that a significant portion of American patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation …

The Tragedy Of Trips, Peter M. Gerhart

Faculty Publications

This Article argues that sound intellectual property policy requires not only that the policymaker establish an appropriate incentive for invention but also that the policymaker determine how the cost of that incentive should be distributed across various classes of consumers. It is the distributive dimension of intellectual property policy that makes existing international institutions such an unsound mechanism for determining global rules for intellectual policy--the policymakers are simply not able to make the appropriate kinds of decisions. I suggest some ways in which institutional structures can be modified to achieve a better balance.

Constitutionalizing Patents: From Venice To Philadelphia, Craig Allen Nard, Andrew P. Morriss

Faculty Publications

Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as "constitutionalized" systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a …

The First Amendment's Biggest Threat, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Introduction: The Triangulation Of International Intellectual Property Law: Cooperation, Power, And Normative Welfare, Peter M. Gerhart

Faculty Publications

Introduction to the symposium "The Future of International Intellectual Property: The International Relations of Intellectual Property Law," Cleveland, Ohio March 26,2004.

Copyrighting Facts, Michael S. Green

Faculty Publications

No abstract provided.

Sequencing, Acoustic Separation, And 3-D Negotiation Of Complex Barriers: Charlene Barshefsky And Ip Rights In China, Rebecca Green, James K. Sebenius

Faculty Publications

Taking the perspective of the lead U.S. negotiator, Charlene Barshefsky, this article details and analyzes the negotiations that took place in the mid-1990s between the United States and the People's Republic of China over intellectual property rights (IPR). Employing a "negotiation analytic" methodology, Charlene Barshefsky's actions are interpreted to suggest a number of promising approaches to managing the daunting complexities of trade and other negotiations: recognizing the multiparty aspects of apparently bilateral dealings and capturing them in a "deal diagram;" carefully assessing "barriers" to agreement; sequencing to build a winning coalition and overcome potentially blocking ones; "acoustic separation" of issueframes; …

Disease Management And Liability In The Human Genome Era, Larry I. Palmer

Faculty Publications

No abstract provided.

The Ancient Doctrine Of Trespass To Web Sites, I. Trotter Hardy

Faculty Publications

No abstract provided.

Newspaper Copyright, Joseph M. Cormack

Faculty Publications

This is a report upon the state of the American law prepared for submission to the International Congress of Comparative Law to be held at The Hague, August 2nd to 6th., 1932. The report was prepared at the request of the American committee of the Interiationad Academy of Comparative Law, and is published with the approval of the Academy. The national reports are to form the basis of a general report, not exceeding xo,ooo words in length, covering the general state of the law in regard to the particular topic. Because of the limitations thus involved, it has been necessary …