Law Commons^™

Social Media And Democracy, Seth C. Oranburg

Law Faculty Scholarship

[Excerpt] "Lately, people have been finding giant pet goldfish in lakes across America. You may see these tiny fish swimming in bowls at the county fair, but left alone in a lake or large pond, where they are dropped perhaps by a well-meaning child, they can grow to 20 pounds or more— and destroy ecosystems. The goldfish is a cautionary tale that has been told time and again in different forms, like Pandora’s box."

Panel 2: Art Law And Blockchain, Tonya M. Evans, Derek Fincham, Katya Fisher, Jeanne L. Schroeder

Law Faculty Scholarship

Panel presentation on Art Law and Blockchain at 2019 AELJ Spring Symposium: Digital Art & Blockchain.

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

Three New Metrics For Patent Examiner Activity: Office Actions Per Grant Ratio (Ogr), Office Actions Per Disposal Ratio (Odr), And Grant To Examiner Ratio (Ger), Shine Tu

Law Faculty Scholarship

The current metric for examiner prosecution activity is allowance rate, which is calculated by dividing the total number of allowances by the sum of the allowances and abandonments (allowance rate = total allowance/(total allowances total abandonments)). Importantly, however, allowance rates do not consider an examiner’s pending docket. Specifically, allowance rates do not fully capture if the examiner is simply writing office actions thereby prolonging prosecution or allowing cases. This study rectifies this failure by creating and analyzing a dataset that captures every active examiner’s current docket. Calculating the Office Action per Grant Ratio (OGR = Total # of Office Actions/Total …

How The Supreme Court Ignored The Lesson Of Zeran And Screwed Up Copyright Law On The Internet, Roger Allan Ford

Law Faculty Scholarship

This short essay, prepared for a retrospective organized by Eric Goldman and Jeff Kosseff on the twentieth anniversary of the Fourth Circuit’s decision in Zeran v. AOL, argues that the Supreme Court failed to learn the lesson of that foundational case, with adverse consequences for copyright law on the internet.

The Uneasy Case For Patent Federalism, Roger Allan Ford

Law Faculty Scholarship

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation.

There …

The Patent Spiral, Roger Allan Ford

Law Faculty Scholarship

Examination — the process of reviewing a patent application and deciding whether to grant the requested patent — improves patent quality in two ways. It acts as a substantive screen, filtering out meritless applications and improving meritorious ones. It also acts as a costly screen, discouraging applicants from seeking low-value patents. Yet despite these dual roles, the patent system has a substantial quality problem: it is both too easy to get a patent (because examiners grant invalid patents that should be filtered out by a substantive screen) and too cheap to do so (because examiners grant low-value nuisance patents that …

Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi

Law Faculty Scholarship

[Excerpt] The UNH School of Law Intellectual Property Library celebrates its twentieth anniversary this year. It is a fortuitous time for this look back and for strategic considerations for the future. This anniversary comes at a time in the history of legal education when conditions over the past few years have intensified the analysis of mission and resources for law school libraries. This article is a retrospective review of the history and dynamics surrounding the founding and first twenty years of growth. It is also an analysis of the future growth and mission of the IP Library during times that …

I Am My Brother's Keeper: How The Crossroads Of Entrepreneurship, Intellectual Property And Entertainment Can Be Used To Affect Social Justice, Loren E. Mulraine

Law Faculty Scholarship

Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter, Mary Garner

Law Faculty Scholarship

This project is an empirical analysis of trademarks that have received rejections based on their “scandalous” nature. It is the first of its kind.

The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act, this piece is the first scholarly project that engages an empirical analysis of the Section 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. This study analyzes which marks are being rejected, what evidence is being …

Patent Examiners And Litigation Outcomes, Shine Tu

Law Faculty Scholarship

Conventional wisdom argues that unnecessary litigation of low quality patents hinders innovation, and that the PTO could play a role with its high grant rates. Accordingly, it is important to answer these questions: (1) which patent examiners are issuing litigated patents, (2) are examiners who are "rubber stamping" patents issuing litigated patents at a disproportionately higher rate, and (3) are examiners with less experience issuing more litigated patents? In sum, do patent examiners who issue litigated patents have common characteristics? Intuition would argue that those examiners who issue the most patents (approximately one patent every three business days) would exhibit …

University Of New Hampshire School Of Law Library, Susan Drisko Zago

Law Faculty Scholarship

Review of The University of New Hampshire School of Law Library, Concord, NH.

Patent Invalidity Versus Noninfringement, Roger Allen Ford

Law Faculty Scholarship

Most patent scholars agree that the Patent and Trademark Office grants too many invalid patents and that these patents impose a significant tax upon industry and technological innovation. Although policymakers and scholars have proposed various ways to address this problem, including better ex ante review by patent examiners and various forms of ex post administrative review, district courts invalidating patents in litigation remain a core defense against bad patents. This article analyzes a previously unidentified impediment to the use of district courts to invalidate patents. Nearly every patent lawsuit rises or falls on one of two defenses: invalidity or noninfringement. …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Law Faculty Scholarship

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 …

Counterfeits, Copying And Class, Ann Bartow

Law Faculty Scholarship

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

Will Work': The Role Of Intellectual Property In Transitional Economies -- From Coal To Content, Megan M. Carpenter

Law Faculty Scholarship

The development and exploitation of intellectual property, and participation in the global information economy, are not dependent upon geography. It can take place from anywhere, from the inside of an empty factory in Detroit, to a small country road, nestled between the rhododendron and the river. From the R&D lab at a university, to a barren plain in New Mexico. To move from coal to content, we must foster a dynamic and profitable environment for entrepreneurship, through a supportive and robust university community, through state legislation and institutional support and through effective utilization of intellectual property laws. Intellectual property and …

Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter

Law Faculty Scholarship

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article …

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Law Faculty Scholarship

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

Freedom-To-Operate In The Crop Sciences: Procedure, Stanley P. Kowalski

Law Faculty Scholarship

Freedom to operate (FTO) is the ability to proceed with research, development and commercialization of a crop science product, while fully accounting for any potential risks of infringing activity, that is, whether a product can be made, used, sold, offered for sale, or exported, with a minimal risk of infringing the unlicensed intellectual property rights (IPRs) or tangible property rights (TPRs) of another. An FTO analysis begins with the ‘FTO team’ systematically dissecting the crop science product into the components, combination of components, processes and germplasm that went into its research and development. This is followed by generating a series …

Lexis V. Westlaw For Research - Better, Different, Or Same And The Qwerty Effect?, Jon R. Cavicchi

Law Faculty Scholarship

There are synchronistic moments when in the process of writing. While contemplating this article, an email message made its way to my desk, past Pierce Law Center's spam firewall with the following subject line: "Pepsi v. Coke-Tell Us--Get $10." Do IP researchers choose Lexis or Westlaw justified by taste? Surely you jest, some voice said to me. Repressing this message, I proceeded to compare platform content, perform literature searches, and poll students and IP professors.

Yet another synchronistic moment came as the email from those taking the poll steamed into my email. Many IP professors indicated that they made the …

Intellectual Property Research: From The Dustiest Law Book To The Most Far Off Database, Jon R. Cavicchi

Law Faculty Scholarship

This issue of IDEA introduces a regular series of articles on intellectual property research tools and strategies based on my experience for over a decade as Intellectual Property Librarian and Research Professor at Franklin Pierce Law Center. Pierce Law is consistently ranked among the top law schools training IP professionals. I have taught IP legal research, patent, trademark and copyright searching to hundreds of students and IP professionals in Pierce Law Graduate Programs. I have tackled hundreds of reference and research questions as well as working on countless projects requiring IP information. So I have been faced with challenges and …

Keeping Up To Date With Ip News Services And Blogs: Drowning In A Sea Of Sameness?, Jon R. Cavicchi

Law Faculty Scholarship

It seems like so many IP related Websites you visit invite you to join their free email list to keep you up to date. Sources span a wide spectrum including governmental organizations, non-governmental organizations, educational institutions, consulting services, law firms, commercial publishers and more. These sources span the spectrum from free, to low fee to premium pricing. With all of this information overload and choices, how do you differentiate and choose news sources?

The goals of this article are twofold. Goal one is to present a survey of types and categories of IP news tools available to IP researchers. Since …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Intellectual Property And Indigenous Peoples: Adapting Copyright Law To The Needs Of A Global Community, Megan M. Carpenter

Law Faculty Scholarship

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, …

The Hegemony Of The Copyright Treatise, Ann Bartow

Law Faculty Scholarship

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …