Law Commons^™

Super-Statutory Contracting, Kristelia A. García

Washington Law Review

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Poland’S Challenge To Eu Directive 2019/790: Standing Up To The Destruction Of European Freedom Of Expression, Michaela Cloutier

Dickinson Law Review (2017-Present)

In 2019, the European Parliament and Council passed Directive 2019/790. The Directive’s passage marked the end of a fouryear- long legislative attempt to impose more liability for copyright violations on Online Service Providers, an effort which was controversial from the start. Online Service Providers fear that the 2019 Directive, especially its Article 17, will completely change the structure of liability on the Internet, forcing providers to adopt expensive content filtering systems. Free speech advocates fear that ineffective filtering technology will infringe upon Internet users’ rights to express themselves, and legal scholars have pointed out the Directive’s inconsistency with prior European …

The Federal Circuit's Treatment Of Rule 12 Dismissals For Lack Of Patent Eligible Subject Matter, Andrew Kanel

Akron Law Review

After the Supreme Court’s decision in Alice Corp. v. CLS Bank, there has been an increase in Federal Rule of Civil Procedure (Rule) 12 motions to dismiss for lack of patentable subject matter. These motions are often granted at the district court level and are predominantly upheld by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). This trend creates a hostile environment for inventors and patent holders and threatens to curb innovation in various areas including computer software, biotechnology, and medical diagnostics. The Federal Circuit’s current application of the Alice test at the Rule 12 stage favors …

Obviousness-Type Double Patenting: Why It Exists And When It Applies, Daniel Kazhdan

Akron Law Review

At least since 1819, courts have prohibited double patenting—where an inventor has two patents on the same or obvious variations of the same invention. There have always been two basic justifications for prohibiting double patenting. The first focused on the patentee: bad actors might try to improperly extend their patent monopoly by filing serial applications. The second focused on the public’s rights: the bargain of the patent is that in exchange for the inventor getting a term-limited patent, the public is entitled to use the claimed invention (and its obvious variations) once the patent expires. This public-rights rationale is broader, …

A Tale Of Two Copyrights, Glynn S. Lunney Jr.

Akron Law Review

This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay …

An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang

Akron Law Review

Patent eligibility is one of the most important and controversial issues in intellectual property law. Although the relevant constitutional and statutory text is extremely broad, the Supreme Court has significantly narrowed the scope of patentable eligibility by creating exceptions for inventions directed to abstract ideas, laws of nature, and natural phenomenon. In particular, the Supreme Court’s decisions on this issue over the past decade have created considerable uncertainty regarding the patentability of important innovations. As a result, numerous stakeholders have called for reform of the current rules regarding patent eligibility, and members of Congress have introduced legislation to amend the …

Risk Taking And Rights Balancing In Intellectual Property Law, Clark D. Asay

Akron Law Review

Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines.

In this Article, prepared as part of the IP …

The "Evergreening" Metaphor In Intellectual Property Scholarship, Erika Lietzan

Akron Law Review

This article is a plea for changes in the scholarly dialogue about “evergreening” by drug companies. Allegations that drug companies engage in “evergreening” are pervasive in legal scholarship, economic scholarship, medical and health policy scholarship, and policy writing, and they have prompted significant policymaking proposals. This Article was motivated by concern that the metaphor has not been fully explained and that policymaking in response might therefore be premature. It canvasses and assesses the scholarly literature—more than 300 articles—discussing or mentioning “evergreening.” It catalogues the definitions, the examples, and the empirical studies. Scholars use the term when describing certain actions taken …

Correcting Misunderstandings Of Literal Infringement Scope Regarding After-Arising Technologies Protected By The Doctrine Of Equivalents, Joshua D. Sarnoff

Akron Law Review

Based on conflicting Federal Circuit case law, many academics have written, and many practitioners likely believe, that claim meanings or their applications may expand over time for purposes of literal infringement. But this common wisdom is wrong. Under existing Federal Circuit rules, the first precedent controls in the event of a conflict over doctrine, unless and until reversed en banc. The first precedent on the issue, the 2000 Schering Corp. v. Amgen, Inc. case, held that claim scope does not reach after-arising technologies for literal infringement and suggested that if it did, then such claims would lack written description support. …

When Standards Collide With Intellectual Property: Teaching About Standard Setting Organizations, Technology, And Microsoft V. Motorola, Cynthia L. Dahl

IP Theory

No abstract provided.

Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. Mcjohn

Texas A&M Law Review

The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

Significance Of Scientific And Technical Information Resources In The Development Of Science, Education And Innovative Economy In Uzbekistan, A. Muhammadiev, Sh. Ergashev

Review of law sciences

This article contains information about the generated scientific and technical information based on national research and intellectual objects. The article also provides information on scientific and technological potential, which makes a great contribution to the development of science, education and innovative economies.

The Formation Of A National Legal System Against Cultural Piracy, O. Okyulov

Review of law sciences

This article describes the peculiarity of piracy as a legal category, and as a system of offenses. Different views from scientific researches and literatures on combating piracy are analyzed. The article also elaborates and supports conceptual decisions on combating piracy in Uzbekistan. At present, it is clearly seen that cultural piracy has become widespread as an offense, while the public attitude in the form of censure is rather weakly expressed. It is noted that in order for Uzbekistan to enter the WTO and increase the international rating, in our country it is necessary to take drastic measures against cultural piracy. …

Placebo Marks, Jake Linford

Pepperdine Law Review

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer. A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

The International Intellectual Property Commercialization Council’S 3rd Annual U.S. Conference: The State Of Innovation In The Union, Jeffery P. Langer, Neel Sukhatme, Paul R. Zielinski, G. Nagesh Rao, Pj Bellomo, Matthew Byers, Meghan Gaffney Buck, Everardo Ruiz, Andrei Iancu, Patrick Kilbride, Carl J. Schramm, Colman Ragan, Ami Patel Shah, Randall R. Rader

Catholic University Journal of Law and Technology

The International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of …

Pre-Game Strategy For Long-Term Win: Using Trademark Registration And Right Of Publicity To Protect Esports Gamers, John Bat

Catholic University Journal of Law and Technology

The soaring popularity of esports across the globe has turned ultra-talented gamers into a blend of athlete and entertainer. The youthful esports ecosystem is exploding in growth, and the world is taking notice. But are the gamers who are eyeing professional play taking basic legal steps to develop and shield their brands, as well as bolster their collective negotiating leverage with teams, leagues, and miscellaneous entities? This note explores what features of an up-and-coming esports gamer might be worth protecting through a trademark and/or personality-rights schema, which in turn, could assist competitive gamers who are interested in developing their careers …

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 …

Human Rights Laws And Authorship Norms, Roberta Rosenthal Kwall

Mitchell Hamline Law Review

No abstract provided.

Shaping Intellectual Property Rights Through Human Rights Adjudication: The Example Of The European Court Of Human Rights, Christophe Geiger, Elena Izyumenko

Mitchell Hamline Law Review

No abstract provided.

A Production View On Patent Procurement, Ian C. Schick

IP Theory

When we think of a “production environment,” a law firm patent practice is not usually the first thing that comes to mind. But why not? Patent practices are highly process-oriented, and they certainly involve “manufacturing” work product, primarily in the form of new patent applications and office action responses. This article discusses how, with a production view on patent procurement, exploiting the principles of lean production can be a compelling way to adapt to tough issues presently roiling the patent ecosystem.

Independent Creation In A World Of Ai, Clark D. Asay

FIU Law Review

No abstract provided.

Can Algorithms Promote Fair Use?, Peter K. Yu

FIU Law Review

No abstract provided.

Litigating Against The Artificially Intelligent Infringer, Yvette Joy Liebesman, Julie Cromer Young

FIU Law Review

No abstract provided.

An Old View Of The Cathedral: Intellectual Property Under The Colorado Uniform Partnership Act, Nathaniel T. Vasquez

University of Colorado Law Review

The Colorado Uniform Partnership Act ("CUPA") contains a subtle shortcoming. CUPA is a default statute that only operates in the absence of a governing agreement between two partners formed at the outset of the partnership. As with most things in this life, partnerships inevitably come to an end. When this happens, a partner is said to have "dissociated" from the partnership. Typically, this is followed by a dissolution of the partnership itself

Rather than terminating at that point, the partnership then goes into what is called the "winding up" period. Among other things, winding up involves liquidating all of the …