Law Commons^™

Legal Ethics And Non-Practicing Entities: Being On The Receiving End Matters Too, David Hricik

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The symposium invited me to speak on the legal ethical issues that face counsel who represent non-practicing entities ("NPEs") in patent litigation as plaintiff patentees. My first reaction was that, although obviously the same common law, statutes, ethical rules, and procedural rules apply to such counsel as any other, owing to the tremendous costs of patent litigation, that counsel who represented such a "troll" necessarily would have enhanced obligations to court and opposing counsel to ensure that the suit was not brought in bad faith, nor so conducted.

Upon analysis, however, I came to the somewhat counter­intuitive conclusion that, although …

Knowledge Curation, Michael J. Madison

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This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types …

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

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The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from …

Moral Rights And Supernatural Fiction: Authorial Dignity And The New Moral Rights Agendas, Jacqueline D. Lipton

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In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the …

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

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Intellectual property sits at the center of today’s global information economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who can make and implement intellectual property law - that is to say, the new leaders in intellectual property law. Indeed, the demand for intellectual property law-trained lawyers triggered a “big bang” in the creation of advanced intellectual property law programs at American law schools. The new leaders …

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

Articles

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law.

The global demand for intellectual property law-trained lawyers triggered a "big bang" in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in …

Patent Costs And Unlicensed Use Of Patented Inventions, Rebecca S. Eisenberg

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Recent commentators have observed, and sometimes lamented, significant gaps between the formal reach of the patent system and the practical exclusionary effect of patent law. It is costly for technology developers to obtain and assert patents, for technology users to identify the patents they might be infringing and to clear rights, and for the Patent and Trademark Office (PTO) to find patent-defeating prior art. The costs of the patent system provide shelter for infringing behavior that might otherwise lead to either licensing or liability, perhaps mitigating excesses in the patent system while retaining strong rights that motivated owners may enforce. …

Fame Law: Requiring Proof Of National Fame In Trademark Law, Xuan-Thao Nguyen

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The public has always been infatuated with fame. Trademark law likewise has a long history of infatuation with fame. Protecting the fame embodied in a trademark against dilutive use by others has not been easy. The difficulty stems from the wording of the statute and judicial failure to understand the “fame” requirement. The fundamental question centers on what level of fame is required for the property-like protection against subsequent uses that dilute the famous trademark. This Article argues for national fame to be the requisite requirement for property-like anti-dilution protection under trademark law. The Article recommends that the proof of …

The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor

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The discovery and commercialization of biotechnology innovations often rely on collaborations between universities and for-profit firms. In the United States, the federal government funds much of university life sciences research and, under the Bayh-Dole Act, has some rights to research arising from that funding.

Two important strands of invention ownership issues in this web of collaboration arose under litigation that culminated in the recent United States Supreme Court decision Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc. (“Stanford v. Roche” or “Stanford”). The first is the question of whether Bayh-Dole …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

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This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.

The History Of Intellectual Property Taxation: Promoting Innovations And Other Intellectual Property Goals, Xuan-Thao Nguyen, Jeffrey A. Maine

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No abstract provided.

Raising The Bar And The Public Interest: On Prior Restraints, Traditional Contours, And Constitutionalizing Preliminary Injunctions In Copyright Law, John M. Newman

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No abstract provided.

Holden Caulfield Grows Up: Salinger V. Colting, The Promotion-Of-Progress Requirement, And Market Failure In A Derivative-Works Regime, John M. Newman

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In 2009, the pseudonymous 'John David California" announced plans for U.S. publication of 6o Years Later: Coming Through the Rye, a "sequel" to JD. Salinger's canonical novel The Catcher in the Rye. Salinger reacted swiftly, bringing a copyright infingement suit to enjoin publication of the new work. The district court granted the injunction, effectively banning U.S. distribution of the sequel and unintentionally illustrating modern copyright law's troubling divergence from the purpose of the constitutional grant of copyright authority to Congress.

Economic analysis demonstrates the tension caused by the repeated, incremental expansion of copyright protections-at some point, the Copyright Act will …

Readers' Copyright, Jessica D. Litman

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My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …