Law Commons^™

Contracting To Preserve Open Science: The Privatization Of Public Policy In Patent Law, Peter Lee

Peter Lee

Patents on biomedical research tools—technological inputs to experimentation—may inhibit scientific inquiry and the development of life-enhancing treatments. Various “public law” approaches to address this challenge, such as a common law experimental use exception to patent infringement, have achieved limited success. In the wake of these shortcomings, this Article argues that institutions are resorting to a new paradigm of patent regulation to resolve research holdup. Increasingly, federal and state agencies, universities, non-profits, and disease advocacy groups are conditioning vital research support on requirements that recipients share resulting patented inventions widely for noncommercial research purposes. In essence, these institutions are contractually constructing …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

this article addresses both the theoretical and practical elements of M&A due diligence regarding IP and IT, with an emphasis on recent developments.

From Nuclear War To Net War: Analogizing Cyber Attacks In International Law, Scott James Shackelford

Scott Shackelford

On April 27, 2007, Estonia was attacked by a computer network causing widespread damage. It is currently unclear what legal rights a state has as a victim of a cyber attack. Even if Estonia could conclusively prove that it was Russia, for example, behind the March 2007 attack, could it respond with force or its own cyber attack? There is a paucity of literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (“IW”) on national and international security. Treatments of IW outside the orthodox international humanitarian law (“IHL”) framework are nearly …

Using Patent Law’S Teaching Function To Introduce An Environmental Ethic Into The Process Of Technical Innovation, David L. Booton, Carolyn R. Abbot

David L Booton

This article suggests that patent law be amended so as to demand that applicants disclose, as a condition of grant, the ‘best available technique’ for carrying out the claimed invention. This amendment, it is argued, would give patent law a useful role in promoting sustainable production by providing an incentive to shift production patterns in line with the concept of sustainable consumption and production (SCP). Delivering goods and services with lower environmental impacts is commonly acknowledged as a key component of sustainable development, with national governments and international organisations prioritising the SCP agenda. In recognising the role of patents in …

Pirates Among The Second Life Islands – Why You Should Monitor The Misuse Of Your Intellectual Property In Online Virtual Worlds, Ben Quarmby

Ben Quarmby

Virtual online worlds such as Second Life – a world in which users can live, work and purchase virtual goods, services and real estate – have enjoyed a well-documented explosion in popularity. Their success, however, has not come without some degree of turbulence. Relying on the example of Second Life, this article will address one of the primary sources of concern to arise in connection with these worlds: the dramatic escalation in trademark and copyright violations in virtual world and its impact on real-world individuals or business entities. Given that users have the ability to design and create virtual property …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

No abstract provided.

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

This article is intended to address both the theoretical and practical elements of M&A due diligence associated with intellectual property and information technology issues.

Copyright And Fair Use In The New Digital Age, Jonathan R. Medina

Jonathan R Medina

This paper concerns aspects of intellectual property law in the new digital age and how Fair Use should be modified to include some user-generated content. However, users should be cautious of copyright concerns of creators and respect those rights, using their works in context.

Network Neutrality: Laissez Faire Approach Or Not?, Rebecca Wong Dr

Dr Rebecca Wong

The paper discusses the topical subject of network neutrality, from a US and European legal perspective. Whilst acknowledging the plethora of literature on network neutrality, it argues that regulation in favour of network neutrality should not be confined with the US/European borders but that network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality, before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the US to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, …

The New Federal Trademark Dilution Act Is A Constitutional Restriction On Free Speech, Don E. Reeve

Don E Reeve Jr.

The Note discusses the constitutionality of the Federal Trademark Dilution Act of 2006 (FTDRA) in light of First Amendment concerns by discussing and analyzing 1) the history and evolution of trademark dilution protection while attempting to clarify the confusion over the definition of dilution, 2) the perceived conflict between trademark dilution protection and the First Amendment noting the foundational arguments supporting the criticism of the FTDRA, and 3) the specific criticisms of the FTDRA. The Note then proceeds to apply the legal principals governing First Amendment protection to the current federal statute and argues that the FTDRA does not threaten …

Beyond Recombinant Technology: Synthetic Biology And Patentable Subject Matter, Luigi Palombi

Luigi Palombi

Even though it is not yet clear as a matter of law that isolated biological materials are indeed patentable subject matter, not only have patents over such materials continued to be granted throughout the world, but the European Parliament passed the Biotechnology Directive in 1998 in an attempt to put an end to the debate. The problem is that TRIPS requires that patents be granted for 'inventions' only and there is a real question over whether isolated biological materials or those made by the use of synthetic biology are indeed inventions within the meaning of the word in TRIPS. But …

Improving Access To Medicines Doesn't Have To Mean More Patents, Luigi Palombi

Luigi Palombi

Access to medicines presupposes that there are medicines to access, but the development of medicines, especially those needed to treat diseases that inflict the poor and the disadvantaged, are especially difficult to access because of the pharmaceutical industry’s paradigm of medicines being inextricably linked to patents; meaning, without patents there is no incentive to undertake the necessary R&D to develop new medicines. This paper argues that this is a lie; told by pharmaceutical executives and spread by well meaning scientists. Uncontested by policymakers in the 1960’s it has become a truth that threatens scientific progress, the development of appropriate medicines …

Kentucky Fried Blog: How The Recent Ejection Of A Blogger From The College World Series Raises Novel Questions About The First Amendment, Intellectual Property, And The Intersection Of Law And Technology In The 21st Century, Christian Keeney

Christian Keeney

The attached comment discusses potential conflicts between law and technology using a recent controversy as an example. Additionally, the author proposes a solution to avoid such conflicts in the future.

Ceo Postings: Leveraging The Internet’S Communications Potential While Managing The Message To Maintain Corporate Governance Interests In Information Security, Reputation And Compliance, Margo E. K. Reder

Margo E. K. Reder

CEO POSTINGS –

LEVERAGING THE INTERNET’S COMMUNICATIONS POTENTIAL WHILE MANAGING THE MESSAGE TO MAINTAIN CORPORATE GOVERNANCE INTERESTS IN INFORMATION SECURITY, REPUTATION AND COMPLIANCE

By Margo E. K. Reder

For approximately eight years, Whole Foods Market, Inc. [Whole Foods] CEO John Mackey posted messages to Yahoo! Financial’s online message board for Whole Foods. Rather than using his real name, Mr. Mackey like many posters to chat rooms, created an online alter ego and posted his comments under a pseudonym. As “Rahodeb” Mr. Mackey promoted his Whole Foods chain, boasted about personal stock gains in Whole Foods stock, company plans and performance …

Is Congress Dilution-Al: Problems With The Trademark Dilution Revision Act Of 2006, Jason Flower

jason flower

In 2006, Congress passed the Trademark Dilution Revision Act (“TDRA”), with the intent to more precisely define what constitutes dilution and who may bring a dilution claim, and to specifically overrule Moseley v. Victoria’s Secret Catalogue, Inc. The now infamous decision set the bar for a dilution claim at showing actual dilution rather than a likelihood of dilution, much to the chagrin of the owners of famous trademarks. The TDRA has not been interpreted with the ease Congress intended, and the problems concerning dilution have not subsided. My argument is twofold. First, the standard for likelihood of confusion currently offers …

Is The Federal Circuit’S Eligible Subject Matter Test Still Useful, Tangible, And Concrete After B.P.A.I.’S Bilski Opinion?, Puneet S. Sarna

Puneet S Sarna

Congress has defined the eligible subject matter for patenting in 35 U.S.C. § 101. The Supreme Court has interpreted § 101 to exclude laws of nature and natural phenomena from eligible subject matter. The Federal Circuit has followed Congressional intent and Supreme Court’s precedence in devising the “useful, tangible, and concrete” result test for eligible subject matter. The B.P.A.I. has devised its own physical transformation test to decide whether the subject matter is patentable.

This paper analyzes the Supreme Court’s precedence, Federal Circuit’s jurisprudence, and B.P.A.I.’s Bilski decision on eligible subject matter. The paper then concludes that the B.P.A.I.’s physical …

The Trademark Trap, Aneta Ferguson

Aneta Ferguson

The currently existing scheme of two filing systems for recordation of security interests in trademarks causes a lot of legal uncertainty and numerous problems for lenders and trademark owners. The uncertainty about the rules of perfection and priorities increases costs associated with financing transactions involving trademarks and contributes to the complexity of those transactions. The empirical study of the security interests in trademarks shows that fifteen percent of creditors failed to fulfill the requirements of the currently existing dual filing system and as a consequence are left in a position of unsecured creditors. Legislative reform is very urgently needed in …

Space Pirates, Hitchhikers, Guides And The Public Interest: Transformational Trademark Law In Cyberspace, Thomas C. Folsom

Thomas C. Folsom

Modern trademark law has come of age. Like copyright and patent, it not only has a metaphysic of its own, but it also has the capacity to take goods and services out of the commons. The tendency of modern trademark law to dimi-nish, waste or spoil the commons is nowhere more apparent than in cyber-space. My prior analytic, descriptive and doctrinal articles asserted the leading cases either overprotect or under–protect marks in space, and both extremes are wrong. The cases reach the wrong results at the critical margin because they neither define cyberspace nor distinguish the mark–type conflicts typical-ly occurring …

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

The Formal Structure Of Patent Law And The Limits Of Enablement, Jeffrey A. Lefstin

Jeffrey A Lefstin

Modern American patent law is characterized by two grand themes, both of which were first sounded in the formative years of patent law but have assumed center stage today. The first has been the condensation of the invention and the inventor’s legal rights around the claim, a highly formal and abstract collection of properties defining the boundaries of the patent’s reach. The second has been the drive to reduce patent law to a small set of formal principles, from which the essential doctrines of patent law may be logically derived. This Article argues that those two themes are fundamentally incompatible, …

Leave Those Orcs Alone: Property Rights In Virtual Worlds, Kevin Deenihan

Kevin E Deenihan

Conversion of property is a familiar piece of law. What about conversion of virtual property? In 2006, a man filed suit claiming theft of virtual real estate he maintained in a Virtual World. The Judge may well have wondered: is this property law? Intellectual property? Torts? Contract? When should the law even apply to Virtual Worlds at all? New societies populated by millions of people have sprung up in the online context. Their inhabitants buy goods, trade with each other, and form complex self-regulating organizations and economic systems. All are activities governed in the real world by centuries of legal …

Omniveillance, Privacy In Public, And The Right To Your Digital Identity: A Tort For Recording And Disseminating An Individual’S Image Over The Internet, Josh Blackman

Josh Blackman

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends …

Property, Persona, Permission, Deven R. Desai

Deven R. Desai

Information overload confronts us everyday. In such a situation, attention is scarce and the ability to focus attention has value. In short, the explosion of information means we live in an attention economy. As theorist Richard Lanham has posited, the key assets in the attention economy (e.g. writings, images) are part of the cultural conversation which leads to and elevates the importance of intellectual property because intellectual property is the way our society manages such assets. Put differently, authors now have two interests: the copyrighted work and the reputation that travels with that creation as it enhances the author’s ability …

Toward An Alternative Normative Framework For Copyright: From Private Property To Human Rights, Mary Wong

Mary Wong

As a species of intellectual property, copyrightable works are assumed to be a form of private property, for which exclusive rights are conferred and which may be assigned, licensed and transferred as property. This article questions this fundamental assumption, in terms of both its consequences on rights of access and use by non-owners, and its limitations on the ability of copyright law to accommodate broader socio-cultural norms and values embodying wider notions of creativity and development. It argues that, for copyright law to more fully reflect these norms and values, a more flexible framework is required. Although attempts have been …

Toward An Alternative Normative Framework For Copyright: From Private Property To Human Rights, Mary Wong

Mary Wong

As a species of intellectual property, copyrightable works are assumed to be a form of private property, for which exclusive rights are conferred and which may be assigned, licensed and transferred as property. This article questions this fundamental assumption, in terms of both its consequences on rights of access and use by non-owners, and its limitations on the ability of copyright law to accommodate broader socio-cultural norms and values embodying wider notions of creativity and development. It argues that, for copyright law to more fully reflect these norms and values, a more flexible framework is required. Although attempts have been …

The Pope's Copyright? Aligning Incentives With Reality By Using Creative Motivation To Shape Copyright Protection, Lydia P. Loren

Lydia P Loren

In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. Indeed, it appears that the U.S. adheres completely to the notion that “no man but a blockhead ever wrote, except for money.” Yet the creation of many works, such as email and papel decrees, ordinarily are not motivated by monetary incentives. Nevertheless, current copyright protection fails to account for the creator’s motivation in determining the level …

Modifying Fixation: Why Fixed Works Need To Be Archived To Justify The Fixation Requirement, Yoav D. Mazeh

Yoav D Mazeh

No abstract provided.

Valuable Asset Or Vibrant Force? Intellectual Property And Conceptions Of Culture, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Discussions of intellectual property as property often implicitly rely upon conceptions of value that give primacy to economic and business value while dismissing or even ignoring questions of cultural value. Questions of cultural value are, however, fundamental to discussions of intellectual property today. Discussions of intellectual property often emphasize treating cultural material as valuable assets and highlight the role of intellectual property in protecting such assets. Valuable asset models of culture accentuate the business and economic utility of intellectual property assets. Valuable asset approaches, however, typically reflect an incomplete understanding of the roles of culture and the intersection of culture …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …