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2006

Intellectual Property Law

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Full-Text Articles in Law

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif Dec 2006

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

ExpressO

The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …


To Sow Or Not To Sow: Practical Issues Relating Arising From Introducing Plant Variety Protecting In Developing Nations, Srividhya Ragavan Dec 2006

To Sow Or Not To Sow: Practical Issues Relating Arising From Introducing Plant Variety Protecting In Developing Nations, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.


Reversing The Reversal Rate: Using Real Property Principles To Guide Federal Circuit Patent Jurisprudence, Paul M. Schoenhard Dec 2006

Reversing The Reversal Rate: Using Real Property Principles To Guide Federal Circuit Patent Jurisprudence, Paul M. Schoenhard

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Recent Trends Underscoring International Trade Commission Review Of Initial Determinations And Federal Circuit Appeals From Final Commission Determinations Under Section 337 Of The Tariff Act Of 1930, Robert A. Caplen Dec 2006

Recent Trends Underscoring International Trade Commission Review Of Initial Determinations And Federal Circuit Appeals From Final Commission Determinations Under Section 337 Of The Tariff Act Of 1930, Robert A. Caplen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The First Amendment Versus Operational Security: Where Should The Milblogging Balance Lie?, Katherine C. Den Bleyker Dec 2006

The First Amendment Versus Operational Security: Where Should The Milblogging Balance Lie?, Katherine C. Den Bleyker

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Economics Of Cultural Misrepresentation: How Should The Indian Arts And Crafts Act Of 1990 Be Marketed?, Jennie D. Woltz Dec 2006

The Economics Of Cultural Misrepresentation: How Should The Indian Arts And Crafts Act Of 1990 Be Marketed?, Jennie D. Woltz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Hoods Who Move The Goods: An Examination Of The Booming International Trade In Counterfeit Luxury Goods And An Assessment Of The American Efforts To Curtail Its Proliferation, Sam Cocks Dec 2006

The Hoods Who Move The Goods: An Examination Of The Booming International Trade In Counterfeit Luxury Goods And An Assessment Of The American Efforts To Curtail Its Proliferation, Sam Cocks

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun Dec 2006

A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun

Research Collection Yong Pung How School Of Law

The ever-increasing digitization of works, along with the deployment of technical measures to protect such works and the expansive use of the Internet, further exacerbate the divide between the IP-rich and IP-poor countries in their ability to benefit from such works. It is suggested by this paper that to borrow from experiences on how the telecommunications world provides universal service to each and every household at affordable prices, and to endeavor to shed some new light on how the copyright divide can be narrowed. It is structured in three parts. The first part will examine the past and future failure …


The Value Of U.S. Patents By Owner And Patent Characteristics, James Bessen Dec 2006

The Value Of U.S. Patents By Owner And Patent Characteristics, James Bessen

Faculty Scholarship

This paper uses renewal data to estimate the value of U.S. patents, controlling for patent and owner characteristics. Estimates of U.S. patent value are substantially larger than estimates for European patents, however, the ratio of U.S. patent value to R&D for firms is only about 3%. Patents issued to small patentees are much less valuable than those issued to large corporations, perhaps reflecting imperfect markets for technology. Litigated patents are more valuable, as are highly cited patents. However, patent citations explain little variance in value, suggesting limits to their use as a measure of patent quality.


Independent Invention As A Defense To Patent Infringement, Samson Vermont Dec 2006

Independent Invention As A Defense To Patent Infringement, Samson Vermont

Michigan Law Review

Under current law, independent invention is no defense to patent infringement. This Article argues that independent invention should be a defense, provided the independent inventor creates the invention before receiving actual or constructive notice that someone else already created it. The defense reduces wasteful duplication of effort and enhances dissemination of inventions without lowering the incentive to invent below the necessary minimum. To be sure, the defense lowers the incentive for inventions that face significant odds of being invented by more than one inventor By enabling a second inventor to compete with a first inventor the defense essentially breaks up …


Vol. Ix, Tab 41 - Ex. J - Hagan Deposition From Cng (Google Managing Counsel - Trademarks), Rose Hagan Nov 2006

Vol. Ix, Tab 41 - Ex. J - Hagan Deposition From Cng (Google Managing Counsel - Trademarks), Rose Hagan

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?


Are Browse-Wrap Agreements All They Are Wrapped Up To Be? , Ian A. Rambarran Nov 2006

Are Browse-Wrap Agreements All They Are Wrapped Up To Be? , Ian A. Rambarran

ExpressO

Electronic agreements continue to fortify their presence in the digital commercial marketplace. Whether used to sell goods or services, or simply to define relationships, standardized electronic agreements have appeared in abundance in business-to-business or business-to-consumer transactions. Standardized electronic agreements, like their physical counterparts, offer the ability to address multiple concerns in a simple, efficient fashion. Although electronic contracts and electronic signatures have been accepted and promoted by federal and state governments, many fundamental aspects of contract law have been left for the courts to wrestle with when disputes arise.

Today, there are essentially two types of standardized electronic agreements—the click-through …


Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens Nov 2006

Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens

ExpressO

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap …


Newsgroups Float Into Safe Harbor, And Copyright Holders Are Sunk, Alicia L. Wright Nov 2006

Newsgroups Float Into Safe Harbor, And Copyright Holders Are Sunk, Alicia L. Wright

Duke Law & Technology Review

Usenet newsgroups are swiftly becoming a popular vehicle for pirating digital music, movies, books, and other copyrighted works. Meanwhile, courts ignore Usenet’s tremendous potential for copyright infringement. In Ellison v. Robertson, the Ninth Circuit Court of Appeals found that America Online’s Usenet service might qualify for safe harbor under the Digital Millennium Copyright Act. According to the district court below, safe harbor would preclude a finding of secondary copyright infringement against America Online. However, the courts misinterpreted the safe harbor provisions. One safe harbor provision was misapplied and another was ignored altogether. This iBrief critiques the Ellison opinions and analyzes …


Copyright And The Dead Sea Scrolls Nov 2006

Copyright And The Dead Sea Scrolls

Stanley H. Mervis Lecture

No abstract provided.


The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter Nov 2006

The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter

William & Mary Law Review

When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private "monopolies," in contrast to the general antimonopoly thrust of the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners-or excuses otherwise infringing activity on the part of IP defendants-expressly for the purpose of promoting competition. It does so even though antitrust law -if one were to apply it at all under analogous circumstances-would not find anticompetitive harm without conducting a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient …


Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu Nov 2006

Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu

San Diego International Law Journal

These developments and mutual correlating interests underscore the rising trend in the number of international co-productions and cinematographic co-operations with India. Still, the practice of movie making in India differs in many ways from industry structures in the U.S. or Germany, which shall be analyzed as potential co-production partners. Contractual relations, industry regulations, involved parties, and the legal rules are so distinct, that a comparative view from a producer's perspective shall bring into light the frameworks and copyright issues of international film co-productions involving India.


Fixing Fair Use, Michael W. Carroll Nov 2006

Fixing Fair Use, Michael W. Carroll

Working Paper Series

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …


The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith Nov 2006

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

Scholarly Works

In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide …


Copyright And Breathing Space, Joseph Liu Oct 2006

Copyright And Breathing Space, Joseph Liu

Joseph P. Liu

According to the U.S. Supreme Court, copyright law’s fair use and idea/expression doctrines are “built-in free speech safeguards” that establish a “definitional balance” between copyright and the First Amendment. Yet these “built-in free speech safeguards” are among the most uncertain and ill-defined doctrines in all of copyright law. If we accept the Supreme Court’s statement that these doctrines play a critical role as First Amendment safety valves, it follows that the chilling effect of uncertainty in these doctrines has a constitutional dimension. Current copyright law doctrine, however, fails to take into account the potential chilling effect of copyright liability. This …


Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García Oct 2006

Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García

Bruno L. Costantini García

Ponencia sobre la Ley Federal del Procedimiento Contencioso Administrativo, impartida por Bruno L. Costantini García.


The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin Oct 2006

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

ExpressO

The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent infringement litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of judicial dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that …


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald Oct 2006

Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald

ExpressO

This paper uses the issue of runaway production as a looking glass into the complex world of Hollywood economics and politics. As such, a broad overview of Hollywood's business practices, history, and technology are discussed so the reader can understand how runaway production (a major issue itself) is one piece of the Hollywood puzzle. Specifically, this paper attempts to study runaway productions from the Law and Economics approach described in Judge Richard Posner's text on the subject. Events in 2006 illustrate the continuing importance of runaway productions and CEIDR's August 2006 report is discussed in this paper.

Recently expanded, this …


The Legal Framework Surrounding Digital Rights Management Technologies, Joseph Liu Oct 2006

The Legal Framework Surrounding Digital Rights Management Technologies, Joseph Liu

Joseph P. Liu

Providing legal framework for digital rights management.


Of The Unequals Of Uruguay, Srividhya Ragavan Oct 2006

Of The Unequals Of Uruguay, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.


Three Reactions To Mgm V. Grokster, Pamela Samuelson Oct 2006

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …


File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber Oct 2006

File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber

Michigan Telecommunications & Technology Law Review

Much economic, political, judicial and legal attention has been showered on the significant changes currently taking place within the music production and distribution business forced by the use of the Internet for both file sharing (of unauthorized copyrighted material) and more recent online (legal) music distribution. The strong demand for music, coupled with the low cost of distributing illegal copies via peer-to-peer (P2P) systems, is unraveling the business model by which music has traditionally been created, developed, and distributed. Application of traditional copyright law has been ineffective in stopping the loss of business in the traditional channels. Producers have implemented …


The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald Oct 2006

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …


Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton Oct 2006

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …