Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Keyword
-
- Patent (5)
- Patents (5)
- Copyright law (3)
- Federal Circuit (3)
- Cardozo Arts and Entertainment Law Journal (2)
-
- Copyright (2)
- Electronic information resources (2)
- Electronic records (2)
- Litigation (2)
- Patent law (2)
- Property rights (2)
- Research (2)
- United States (2)
- ACTA (1)
- AELJ (1)
- Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (1)
- Alternative dispute resolution in intellectual property (1)
- Anti-Counterfeiting Trade Agreement (1)
- Appellate jurisdiction (1)
- Attribution (1)
- Audiovisual work (1)
- Bayh-Dole Act (1)
- Berne Convention (1)
- Biometry (1)
- Brand Names; Civil Disobedience; Culture; Democracy; Intellectual Property (1)
- Business Method Patents (1)
- Columbia Law Review Sidebar (1)
- Competition (1)
- Conceptual sequencing (1)
- Constitution. 4th Amendment (1)
Articles 1 - 30 of 40
Full-Text Articles in Law
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
Faculty Scholarship
No abstract provided.
The Private Costs Of Patent Litigation, James Bessen, Michael J. Meurer
The Private Costs Of Patent Litigation, James Bessen, Michael J. Meurer
Faculty Scholarship
This paper estimates the total cost of patent litigation to alleged infringers. We use a large sample of stock market event studies around the date of lawsuit filings for US public firms from 1984-99. We find that the total costs of litigation are much greater than legal fees and costs are large even for lawsuits that settle. Lawsuits cost alleged infringers about $28.7 million ($92) in the mean and $2.9 million in the median. Moreover, infringement risk rose sharply during the late 1990s to over 14% of R&D spending. Small firms have lower risk relative to R&D.
Intellectual Property Training And Education For Development, Peter K. Yu
Intellectual Property Training And Education For Development, Peter K. Yu
Faculty Scholarship
Written for a symposium addressing the need to construct a positive policy and research agenda for international intellectual property law, this article explores ways to improve the design and delivery of intellectual property training and educational programs. The article draws on the author's experience as the rapporteur for the International Roundtable on WIPO Development Agenda for Academics.
The article begins by reflecting on WIPO’s changing orientation, outlining the principles and goals recognized in its Development Agenda. It emphasizes the need for an expansion of coverage in intellectual property training and educational programs. It also offers guidelines on ways to redesign …
Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson
Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson
Faculty Scholarship
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 …
Intellectual Property And Asian Values, Peter K. Yu
Intellectual Property And Asian Values, Peter K. Yu
Faculty Scholarship
From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy.
Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and …
Intellectual Property And Human Rights In The Nonmultilateral Era, Peter K. Yu
Intellectual Property And Human Rights In The Nonmultilateral Era, Peter K. Yu
Faculty Scholarship
In the past decade, countries have actively established bilateral, plurilateral and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era of nonmultilateralism that warrants a reexamination of the complex interrelationship between intellectual property and human rights.
This article closely examines the human rights impact of the intellectual property provisions in TRIPS-plus nonmultilateral agreements. It begins by outlining the challenges inherent in any analysis of the …
A Generation Of Software Patents, James Bessen
A Generation Of Software Patents, James Bessen
Faculty Scholarship
This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.
The Alphabet Soup Of Transborder Intellectual Property Enforcement, Peter K. Yu
The Alphabet Soup Of Transborder Intellectual Property Enforcement, Peter K. Yu
Faculty Scholarship
n the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN.
Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and midsize firms. It then explores the ongoing negotiation …
Rethinking Federal Circuit Jurisdiction, Paul Gugliuzza
Rethinking Federal Circuit Jurisdiction, Paul Gugliuzza
Faculty Scholarship
Thirty years ago, Congress created the Federal Circuit for the overriding purpose of bringing uniformity to patent law. Yet less than half of the court’s cases are patent cases. Most Federal Circuit cases involve veterans benefits, government-employment actions, government contracts, and other matters. Although existing literature purports to study the Federal Circuit as an institution, these projects focus largely on the court’s patent cases. This Article, by contrast, considers whether the court’s nonpatent docket might affect the development of patent law and whether the court’s specialization in patent law has consequences for how it decides nonpatent cases.
These inquiries result …
The Rise And Decline Of The Intellectual Property Powers, Peter K. Yu
The Rise And Decline Of The Intellectual Property Powers, Peter K. Yu
Faculty Scholarship
In the past decade, China has experienced many impressive economic and technological developments. Intriguingly, the narrative about piracy and counterfeiting there is rarely linked to the narrative about the China's technological rise. To provide a more comprehensive picture, this article brings together these two different narratives to explore what their combination would mean for the United States and its intellectual property industries.
Delivered as the keynote luncheon address at the Symposium on "Applications of Intellectual Property Law in China," this article begins with the good news that China is at the cusp of crossing over from a pirating nation to …
The Middle Kingdom And The Intellectual Property World, Peter K. Yu
The Middle Kingdom And The Intellectual Property World, Peter K. Yu
Faculty Scholarship
Delivered as the keynote opening address at the Symposium on "China's Role in Regulating the Global Information Economy," this Article scrutinizes China's participation in the international intellectual property regime and its role in both the WTO and WIPO. It begins by discussing China's engagement with international intellectual property norms before its accession to the WTO in December 2001. It points out that China is not a "norm breaker" one typically infers from its disappointing record of intellectual property protection. Instead, the country should be viewed as a "norm taker," having accepted most of the WIPO-administered intellectual property treaties available for …
A Copyright Law For A Social Species, Robert E. Suggs
A Copyright Law For A Social Species, Robert E. Suggs
Faculty Scholarship
Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry.
The expressive culture that copyright protects …
The Giants Among Us, Robin Feldman, Tom Ewing
The Giants Among Us, Robin Feldman, Tom Ewing
Faculty Scholarship
No abstract provided.
A Case Against Acta, Kenneth L. Port
A Case Against Acta, Kenneth L. Port
Faculty Scholarship
The Anti-counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an Executive Order. If signed, this Order will greatly enhance controls placed at the borders of 36 countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political and emotional sensitivity, I adopt the value neutral term of “imitative commodity” to describe what some call counterfeits, knockoffs, pirates, etc. This article uses just three manufacturers of luxury status goods to consider whether the ACTA will have positive or negative consequences. It concludes that the data supporting the need for the ACTA …
Usefulness Varies By Country: The Utility Requirement Of Patent Law In The United States, Europe And Canada, Jay Erstling, Amy M. Salmela, Justin N. Woo
Usefulness Varies By Country: The Utility Requirement Of Patent Law In The United States, Europe And Canada, Jay Erstling, Amy M. Salmela, Justin N. Woo
Faculty Scholarship
The requirement that an invention have utility is one of the most fundamental of the patent laws. In the United States, for example, the concept of utility is rooted in the Constitution: Article 1, Section 8, gives Congress the power to grant exclusive rights to inventors in order “[t]o promote the progress of Science and useful Arts.” Other jurisdictions recognize utility in the form of inventions that have “industrial applicability” or are “capable of exploitation in industry,” with all of these terms and phrases generally viewed as being synonymous.
Historically, nearly every jurisdiction has excluded some type of invention from …
The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Robin Feldman
The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Robin Feldman
Faculty Scholarship
Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …
Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik
Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik
Faculty Scholarship
A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).
A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser
A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser
Faculty Scholarship
The article uses two hand‐collected data sets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent “quality” as legal validity, the article analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The article finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and …
Symposium Introduction: Advancing Intellectual Property Goals Through Prevention And Alternative Dispute Resolution, Thomas Barton, James M. Cooper
Symposium Introduction: Advancing Intellectual Property Goals Through Prevention And Alternative Dispute Resolution, Thomas Barton, James M. Cooper
Faculty Scholarship
This essay offers a brief background to the issues that prompted a global exploration of alternative methods for preventing and resolving IP disputes. Part One describes the exploding importance of IP rights and law and consequent challenges to court adjudication. Part Two offers a snapshot of current IP enforcement methods: traditional and emerging, public and private, domestic and international. Part Three suggests factors toward matching IP problems with alternative procedures for their effective resolution. Finally, woven throughout this essay is a recommendation of stronger involvement by public domestic or international bodies in dispute prevention and ADR methods.
When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji
When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji
Faculty Scholarship
Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.
Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …
A Development Model Meets Piracy In Paraguay, James M. Cooper, Carlos Ruffinelli
A Development Model Meets Piracy In Paraguay, James M. Cooper, Carlos Ruffinelli
Faculty Scholarship
This essay will explore the dynamics behind Paraguay's economy, political stability, legal culture, and geopolitical conditions that make the protection of IP rights a major challenge. Part I of this essay details Paraguay's current condition in a socioeconomic, political, and developmental context. Part II of this essay explores how Paraguay's lack of economic opportunities, relaxed enforcement regime, and cultural tradition create conditions where the counterfeiting industry flourishes. Part III of this essay examines some of the international IP rights agreements to which Paraguay is a party, and it examines how these agreements might help strengthen the IP rights regime in …
The North American Free Trade Agreement And Its Legacy On The Resolution Of Intellectual Property Disputes, James Cooper
The North American Free Trade Agreement And Its Legacy On The Resolution Of Intellectual Property Disputes, James Cooper
Faculty Scholarship
This essay focuses on NAFTA and the contributions that this regional trade pact made to protect IPR and settle intellectual property (IP) disputes. It also explores the legacy of NAFTA in the context of the eventual WTO, and the rights provided by the TRIPS Agreement that was concluded as part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. Section II provides a brief historical background on how NAFTA fit into the world as countries began aligning themselves by creating various trade agreements. Section III surveys the provisions and legacy of NAFTA with respect to …
Patent Litigation And The Internet, Samantha Zyontz, John R. Allison, Emerson H. Tiller, Tristan Bligh
Patent Litigation And The Internet, Samantha Zyontz, John R. Allison, Emerson H. Tiller, Tristan Bligh
Faculty Scholarship
Patent infringement litigation has not only increased dramatically in frequency over the past few decades,1 but also has also seen striking growth in both stakes and cost.2 Although a relatively rich literature has added much to our understanding of the nature, causes, and consequences of patent litigation during the past two decades,3 many interesting questions remain inadequately addressed. The nuances of and trends in patent litigation in different technology fields and industries, for example, are still understudied.4 Litigation of patents on new technologies has likewise received a dearth of attention. Here we seek to help begin …
The New Federal Circuit Mandamus, Paul Gugliuzza
The New Federal Circuit Mandamus, Paul Gugliuzza
Faculty Scholarship
This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the …
The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh
The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh
Faculty Scholarship
In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough – or “substantially similar” – for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the …
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
Faculty Scholarship
Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus …
Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg
Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg
Faculty Scholarship
Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their …
Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat
Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat
Faculty Scholarship
Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.
Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents are …
Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai
Faculty Scholarship
In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …