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Full-Text Articles in Law
“Less Is More”: New Property Paradigm In The Information Age?, Aarthi S. Anand
“Less Is More”: New Property Paradigm In The Information Age?, Aarthi S. Anand
Duke Law & Technology Review
Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this evidence in time to limit expansive copyright. United States law, however, already protects information products under copyright. Hence, this counterfactual evidence that judges request cannot be generated in the United States. In response to the demand for data, American legal scholars have attempted to mine evidence from open software and other non-commercial endeavors on the Internet. However, these endeavors have been dismissed as exceptions …
Open Source Innovation, Patent Injunctions, And The Public Interest, James Boyle
Open Source Innovation, Patent Injunctions, And The Public Interest, James Boyle
Duke Law & Technology Review
This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with …
The “25% Rule” For Patent Infringement Damages After Uniloc, Roy J. Epstein
The “25% Rule” For Patent Infringement Damages After Uniloc, Roy J. Epstein
Duke Law & Technology Review
The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues to argue that the Rule is fundamentally valid and should remain in use. This article analyzes the historical development of the Rule, its conceptual basis, its application in actual cases, and relevant insights from other recent Federal Circuit cases. Each analysis shows fundamental problems and contradictions that demonstrate the Rule can never be a reliable patent damages methodology. There is no reason to change …