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Articles 1 - 30 of 235
Full-Text Articles in Law
Is The Prototypical Small Inventor At Risk Of Inadvertently Eliminating Their Traditional One-Year Grace Period Under The America Invents Act?, Eric A. Kelly
Eric A Kelly
This Comment interprets new statutory language appearing in the Leahy-Smith America Invents Act, effective March 16, 2013, regarding what may constitute prior art and how prior art triggers the new one-year grace period. If this interpretation is followed, the vitally necessary grace period will continue to be accessible to inventors, especially small inventors. Specifically, this Comment recommends interpreting “or otherwise available to the public” as a public accessibility condition precedent that must be satisfied in order for public use and on sale events to constitute prior art; which as prior art then triggers the one-year grace period in which to …
Standardized Terms And Conditions For Open Patenting, Mariateresa Maggiolino, Maria Lillà Montagnani
Standardized Terms And Conditions For Open Patenting, Mariateresa Maggiolino, Maria Lillà Montagnani
mariateresa maggiolino
Once given a legal characterization of the open patenting phenomenon and discussed many of the empirical and theoretical experiences dealing with both open innovation and defensive patenting, the paper suggests what standardized terms and conditions a patent license should encompass in order to foster both the free movement of patented knowledge and its business applications.
Secrets, Secrets Are No Fun! Balancing Patent Law & Trade Secret Law Under The America Invents Act, Stephen J. Elkind
Secrets, Secrets Are No Fun! Balancing Patent Law & Trade Secret Law Under The America Invents Act, Stephen J. Elkind
Stephen J Elkind
This Note seeks to understand the tension between trade secrecy law and patent law pointed out by Judge Hand. Further, this Note argues that the recently enacted America Invents Act (“AIA”) overrules the holding from Metallizing Engineering that secret prior commercial use by an inventor before the critical date renders an invention unpatentable. Part I discusses the different incentive structures behind patents and trade secrets. Patent law requires that an invention achieve certain higher standards than trade secret law; and in doing so provides incentivizes for a different sort of invention than trade secret law. For commercial uses that are …
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
All Faculty Scholarship
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …
Ids Practice After Therasense And The Aia: Decoupling The Link Between Information Disclosure And Inequitable Conduct, Arpita Bhattacharyya, Michael R. Mcgurk
Ids Practice After Therasense And The Aia: Decoupling The Link Between Information Disclosure And Inequitable Conduct, Arpita Bhattacharyya, Michael R. Mcgurk
Arpita Bhattacharyya
An essential element of filing and prosecuting a patent application in the United States is the duty to disclose material information to the United States Patent and Trademark Office (“Patent Office”) under 37 C.F.R. § 1.56 (Rule 56). The failure to disclose information can result in a later ruling of inequitable conduct and unenforceability of the patent. The Federal Circuit’s en banc decision in Therasense heightened the “materiality” and “intent” standards for finding inequitable conduct, but there has been much uncertainty in the patent community regarding the future of the duty of disclosure under Rule 56. The majority in Therasense …
Only Part Of The Picture: A Response To Rebecca Tushnet's Worth A Thousand Words: The Images Of Copyright (125 Harv. L. Rev. 683), Zahr K. Said
Zahr K Said
Only Part of the Picture: A Response to Rebecca Tushnet’s Worth a Thousand Words: The Images of Copyright 125 HARV. L. REV. 683
Zahr K. Said
Professor Rebecca Tushnet’s Article elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality …
Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin
Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin
Brittani N. Baldwin
No abstract provided.
Copyright Fee Shifting: A Proposal To Promote Fair Use And Fair Licensing, Ben Depoorter
Copyright Fee Shifting: A Proposal To Promote Fair Use And Fair Licensing, Ben Depoorter
Ben Depoorter
The fair use doctrine seeks to facilitate socially optimal uses of copyrighted material. As a practical matter, however, cumulative creators, such as documentary filmmakers and many contemporary musicians, are often reluctant to rely on the fair use doctrine because of its inherent uncertainty, the potentially harsh remedies for copyright infringement, and the practical inability to obtain effective pre-clearance rights. Moreover, copyright owners have no obligation under existing law to respond to a cumulative creator’s inquiry. Thus, a familiar refrain in professional creative communities is “if in doubt, leave it out.” In this Article we propose a novel mechanism that would …
A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer
A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer
Matthew Rimmer
EXECUTIVE SUMMARYThis submission draws upon a number of pieces of research and policy papers on the plain packaging of tobacco products including:1. Becky Freeman, Simon Chapman, and Matthew Rimmer, 'The Case for the Plain Packaging of Tobacco Products' (2008) 103 (4) Addiction 580-590.2. Matthew Rimmer, 'A Submission to the Senate Legal and Constitutional Committee on the Trade Marks Amendment (Tobacco Plain Packaging) Bill (Cth)', September 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=dabfcd75-9807-493f-bc99-4a7506bf493b3A. Matthew Rimmer, 'Tobacco's Mad Men Threaten Public Health', The Conversation, 23 September 2011, http://theconversation.edu.au/tobaccos-mad-men-threaten-public-health-34503B. Matthew Rimmer, 'Big Tobacco's Box Fetish: Plain Packaging at the High Court', The Conversation, 20 April 2012, https://theconversation.edu.au/big-tobaccos-box-fetish-plain-packaging-at-the-high-court-65183C. Matthew …
Compulsory Licensing In The European Union, Jarrod Tudor
Compulsory Licensing In The European Union, Jarrod Tudor
Jarrod Tudor
Despite attempts to harmonize intellectual property law across the 27-member European Union, this area of law remains a mix of national law and federal law. In regard to the possibility of compulsory licensing, challenges remain in the attempt to make law uniform. The Court of Justice of the European Union has struggled to balance national and federal interests on the issue of compulsory licensing of patents, trademarks, and copyrights largely by applying Articles 28, 30, 81, and 82 of the Treaty on European Union. Specifically, these Articles of the Treaty that support the notion of the free movement of goods …
Intellectual Property, The Free Movement Of Goods And Trade Restraint In The European Union, Jarrod Tudor
Intellectual Property, The Free Movement Of Goods And Trade Restraint In The European Union, Jarrod Tudor
Jarrod Tudor
The European Union is the most significant trade partner of the United States. Trading in goods protected by intellectual property rights remains a challenge for American business entities as they are forced to sift through a myriad of law consisting of the federal intellectual property law of the European Union and the intellectual property law of the member-states. The Court of Justice of the European Union has been faced with dozens of complex cases arising out of conflicts between the national law of the member-states and the Articles of the Treaty on European Union that mandate the free movement of …
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda B. Cook
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda B. Cook
Amanda B Cook
The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to remember that in the common law …
What's The Problem Money Can't Solve? Why Determining The Validity Of A Copyright Application Is A Clear Precondition To Infringement Action, Jason Scott Duey
What's The Problem Money Can't Solve? Why Determining The Validity Of A Copyright Application Is A Clear Precondition To Infringement Action, Jason Scott Duey
Jason S Duey
No abstract provided.
Managing Content In Virtual Environments: From Music To Machinima, Tamiko R. Franklin
Managing Content In Virtual Environments: From Music To Machinima, Tamiko R. Franklin
Tamiko R Franklin
Developing an effective rights management strategy in virtual environments requires a close review of current case law especially with respect to ongoing clarifications of mentioned statutory provisions under copyright laws. It is also helpful to be aware of the peculiarities that involve copyright protected content created for use in virtual spaces such as issues involving publication and making available across multiple jurisdictions. There are differences in international systems of protection that affect the intellectual property rights in content; particularly so if the content in question is a work of visual art like a photograph or digital representation of a painting, …
Beyond Einstein And Edison: Claiming Space For Non-Faculty Inventors In Technology Transfer, Jennifer Carter-Johnson
Beyond Einstein And Edison: Claiming Space For Non-Faculty Inventors In Technology Transfer, Jennifer Carter-Johnson
Jennifer Carter-Johnson
The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by licensing. Many scholars have debated the effectiveness of university implementation of this requirement, and indeed, the low rate of disclosure of inventions by academic researchers to the university is often a bottleneck in technology transfer process. Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole requirements have explored faculty-inventor motivations. Similarly, many university intellectual property (IP) policies are drafted specifically toward incentivizing faculty-inventors to comply with invention disclosure requirements. However, in most cases, university inventions are …
Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar- Perel
Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar- Perel
maayan filmar
Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation. Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …
Patenting Isolated Human Enhancer Elements And The Utility Requirement Problem, William B. Mcconnell
Patenting Isolated Human Enhancer Elements And The Utility Requirement Problem, William B. Mcconnell
William B. McConnell
No abstract provided.
Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar-Perel
Reviving The Gatekeeping Function: Optimizing The Exclusion Potential Of Subject Matter Eligibility, Maayan Filmar-Perel
maayan filmar
Today, many patents that fail the constitutional mandate “[to promote the Progress of Science and useful Arts” are issued. Patents are granted irrespective of whether they are actually needed to incentivize innovation.
Consequently, many patent grants fail to reflect an appropriate balance between the ex post costs of short-term monopoly and the benefits of higher ex ante incentives to innovate. Other patents are issued without having any prospected commercial use, so no one actually makes an economically beneficial use of them. The worst of these are those that are sought solely for the purpose of initiating infringement lawsuits and extorting …
Crowdsourcing Indie Movies, Henry H. Perritt Jr.
Crowdsourcing Indie Movies, Henry H. Perritt Jr.
All Faculty Scholarship
Crowdsourcing Indie Movies Henry H. Perritt, Jr. Abstract Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …
Crowdsourcing Indie Movies, Henry H. Perritt Jr.
Crowdsourcing Indie Movies, Henry H. Perritt Jr.
Henry H. Perritt, Jr.
Crowdsourcing Indie Movies
Henry H. Perritt, Jr.
Abstract
Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …
Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford
Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford
Scott Shackelford
Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …
Intellectual Property And Employee Selection, Elizabeth A. Rowe
Intellectual Property And Employee Selection, Elizabeth A. Rowe
Elizabeth A Rowe
In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …
Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David Franklyn, David Hyman
Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David Franklyn, David Hyman
David J. Franklyn
Disgruntled trademark owners have filed more than one hundred lawsuits in the United States and Europe, claiming that their trademarks should not be sold by search engines for use as keywords. Despite the volume of litigation, there has been little independent empirical work on consumer goals and expectations when they use trademarks as search terms; on whether consumers are actually confused by search results; and on which entities are buying trademarks as keywords. Instead, judges have relied heavily on their own intuitions, based on little more than armchair empiricism, to resolve such matters.
We report on the results of a …
Intellectual Property Rights Of Nanotechnology (Challenges And Solutions) With Looking At Trade Related Aspects Of Intellectual Property Rights Agreement (Trips), Maryam Ahmadi, Leila Ahmadi, Abutaleb Koosha
Intellectual Property Rights Of Nanotechnology (Challenges And Solutions) With Looking At Trade Related Aspects Of Intellectual Property Rights Agreement (Trips), Maryam Ahmadi, Leila Ahmadi, Abutaleb Koosha
Maryam Ahmadi
Abstract:
With the emergence of any new technology, nanotechnology creates opportunities as well as challenges in adapting the patent regime to its particular context. There is some consensus that patenting nanotechnology innovations poses more problems than other technologies, owing to their multi-disciplinary character, cross-sectoral applications, broad claims as well as difficulties in fulfilling the patentability criteria. This is aggravated by the lack of a standardized terminology which impedes easy identification of nano-patents and also the fact that patent offices may not be well-equipped to handle nanotechnology. These problems are likely to be compounded for developing and least developed countries, which …
Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao
Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao
Marina Lao
The core of the gathering antitrust case against Google seems to be that it favors its own or its affiliates’ content over that of its competitors in ancillary markets in the unpaid search results. Seeking the competitive advantages inherent in integration, which is what preferential treatment of one’s own property is about, is usually not unlawful. This paper examines whether “essential facilities” and the duty-to-deal nonetheless provide a basis for prohibiting this practice, as some have suggested, and concludes that they do not.
On the threshold monopoly power issue, most assume, based on Google’s high percentage of general search queries, …
The Flaws Of Stem Cell Legislation: Sherley, Brustle, And Future Policy Challenges Posed By Induced Pluripotent Stem Cells, Nicholas J. Diamond
The Flaws Of Stem Cell Legislation: Sherley, Brustle, And Future Policy Challenges Posed By Induced Pluripotent Stem Cells, Nicholas J. Diamond
Nicholas J Diamond
In this article, I first contextualize the origins of disagreement over the nature and extent of human embryonic stem cell (hESC) research regulation. By analyzing two key pieces of hESC legislation as considered in two landmark court decisions—one from the United States and one from the European Union—I argue that current stem cell policies are deeply flawed. After surfacing the flaws of these policies, I examine novel challenges for policymakers posed by the newest advancement in stem cell science, induced pluripotent stem cells. In view of these novel challenges, I contend that current policies, which are hESC-focused and deeply flawed, …
Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese
Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese
Alex Reese
Parties in patent lawsuits that are going to trial face a crucial choice: who is the best witness to explain the often complex or scientific technology behind an invention or an accused product? Often, the parties will select an employee witness such as an engineer, scientist, or a named inventor of the patent-in-suit to offer this key testimony rather than a hired expert. Many litigants have found that there are benefits to choosing an employee witness who can testify based on first-hand experience with the technology in question rather than a hired expert, who must prepare an expert report and …
Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich
Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich
Janet Freilich
This article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …
Copyright Lawmaking And The Public Choice: From Legislative Battles To Private Ordering, Yafit Lev-Aretz
Copyright Lawmaking And The Public Choice: From Legislative Battles To Private Ordering, Yafit Lev-Aretz
Yafit Lev-Aretz
On January 18th, 2012, the Web went dark in the largest online protest in history. Two anti-piracy Bills – The Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA) – attracted waves of opposition from the Internet community, which culminated on January 18th into an unprecedented 24-hour Web strike, followed by a decision to shelve the Bills indefinitely. This Article argues that the SOPA/PIPA protest created a new political reality in copyright lawmaking, with the tech industry becoming a very influential actor on the one hand, and social networks lowering mobilization costs of individual users on the other …
Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David J. Franklyn, David Hyman
Much Ado About Something -- An Empirical Analysis Of Trademarks As Keywords, David J. Franklyn, David Hyman
David J. Franklyn
Disgruntled trademark owners have filed hundreds of lawsuits in the United States and Europe claiming that search engines should not be permitted to sell their trademarks to competitors for use as keywords. Despite the volume of litigation, there has been almost no independent empirical work on the goals and expectations of consumers when they use trademarks as keyword search terms. There has also been little or no work on whether consumers are actually confused by competitor-purchased ads. And there has been no reported investigation identifying the types of entities that purchase trademarks as keywords. In this paper, we report on …