Law Commons^™

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Global Digital Governance Through The Back Door Of Corporate Regulation, Orit Fischman-Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

Celebrating 70 Years, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Message from the co-directors
• News flash
• Bringing in the experts
• Research roundup
• Faculty briefs
• Making health law history
• Uphill battle
• Above and beyond
• In the field
• Joining the team

Researching South African Government And Legal Information: Presentation For The 41st Annual Meeting Of The American Association Of Law Libraries, Sindiso Mnisiweeks, Yemisi Dina, Michelle Pearse, Marcelo Rodríguez

Librarian Publications & Presentations

No abstract provided.

Monuments Without Faces?, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Monuments take many forms and can serve several purposes. Typically associated with honor and a need to commemorate significant events, monuments seem to represent the ideas of the communities which house them. However, it remains to be seen whether all monuments represent a “good” memory. In this essay, the author seeks to comment on the concept of collective memory, specifically in the context of the history and experiences of marginalized groups in the United States. The author argues that monuments are a tool of promoting a collective memory: monuments are not part of history but rather part of the creation …

Yesterday's Protester May Be Tomorrow's Saint: Reimagining The Tax System Through The Work Of Dorothy Day, Bridget J. Crawford, W. Edward Afield

Elisabeth Haub School of Law Faculty Publications

This Article offers a critical exploration of Day's views on the relationship between the tax system and Catholic social theory. Part I of this Article provides a biographical sketch of Dorothy Day and an overview of the Catholic Worker movement. Part II explores Day's views on taxation, pacifism, and social justice. It attempts to reconcile her belief in wealth redistribution with her nonpayment of federal income taxes and her failure to seek tax-exempt status for the Catholic Worker. Part III examines Day's tax resistance in the context of Catholic social teaching, particularly as that thought was developing during Day's lifetime …

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Public Law and Legal Theory Working Papers

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

How Santa Clara Law's "Tech Edge Jd" Program Improves The School's Admissions Yield, Diversity, & Employment Outcomes, Laura Lee Norris, Eric Goldman

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Survey & Legal Analysis Of Select Global Trademark Anti-Counterfeiting Statutes & Evidence Of Prosecutions, Kari Kammel

Marquette Intellectual Property & Innovation Law Review

None

Grand Jury Information And Government Contractors: Reconciliation Through Privacy Law, Andrew Holzmann

Marquette Intellectual Property & Innovation Law Review

None

International Tax Agreements As The Final Push For Us Adoption Of Adequate Protection In Connection With The Gdpr, Olivia Hansen

Marquette Intellectual Property & Innovation Law Review

None

Paws Off My Profile: Protecting The Persona In A Modern Digital Age, Samantha P. Mccaleb

Marquette Intellectual Property & Innovation Law Review

None.

Artificial Intelligence Owning Patents: A Worldwide Court Debate, Maria A. Penkwitz

Marquette Intellectual Property & Innovation Law Review

In the article "Artificial Intelligence Owning Patents: A Worldwide Court Debate," Maria A. Penkwitz explores the legal conflict over whether AI can be a patent inventor. The central case involved DABUS, an AI system that independently created new inventions. Penkwitz's research highlights a significant global divide in legal perspectives.

While courts in the United States, United Kingdom, and Australia have rejected patents for AI-generated inventions, citing existing laws that require a human inventor, other nations are more progressive. Germany, for example, permits a human to be credited alongside the AI, and South Africa made a landmark ruling by granting a …

Intellectual Property And Accessibility For Individuals With Disabilities, Eman A. Daas

Marquette Intellectual Property & Innovation Law Review

None.

Systematizing Scents: The Case For Chemically Standardized Nontraditional Scent Trademarks, Jared Novitzke

Marquette Intellectual Property & Innovation Law Review

None.

Amend The Lanham Act: Trademark Infringement Needs A Statute Of Limitations, Aaron E. Schindler

Marquette Intellectual Property & Innovation Law Review

None.

The Trademark Modernization Act Of 2020: Legislating The "Extra" Out Of "Extraordinary", Jake B. Vallen

NYLS Law Review

No abstract provided.

Securing The "Privacies Of Life" By Preventing General Searches Of Computers, Patrick Fischer

NYLS Law Review

No abstract provided.

The Money Game: Student-Athletes' Battle For Employee Status, Matthew Ehrhardt

NYLS Law Review

No abstract provided.

Table Of Contents, Volume 67, Issue 1

NYLS Law Review

No abstract provided.

Alone In The Lone Star State: How A Lack Of Centralized Public Defender Offices Fails Rural Indigent Defendants, Aiden Park

University of Michigan Journal of Law Reform

The criminal justice system is stacked against indigent defendants. The disadvantages indigent defendants face are exacerbated when mixed with the unique qualities of rural America.

For instance, rural court-assigned attorneys are often picked through ad hoc systems by the very judges these attorneys must appear in front of, creating a judicial conflict of interest. The financial realities of rural public defense work often force counsel to manage a private practice while also balancing court-appointed cases. To the extent integral resources like investigators or experts are present in rural spaces, they are seldom used. This Note highlights the way Texas organizes …

Inequitable By Design: The Patent Culture, Law, And Politics Behind Covid-19 Vaccine Global Access, Ximena Benavides

University of Michigan Journal of Law Reform

COVID-19 vaccine access has been highly inequitable worldwide, with coverage depending largely on a country’s wealth. By the end of 2021, 64.1% of people living in high-income countries had received at least one dose of the vaccine, compared to only 5.4% of those in low-income countries. Similarly, only high- and upper-middle-income countries had received the most effective vaccines.

The uneven distribution of these lifesaving vaccines is made complex due to the convergence of several factors, but it suggests that the extraordinary expanding and ossifying market and political power of a few vaccine manufacturers founded on intellectual property and complementary policies …

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

University of Michigan Journal of Law Reform

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon’s most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms’ owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

Policies For Expanding Hepatitis C Testing And Treatment In United States Prisons And Jails, Tessa Bialek, Dr. Matthew J. Akiyama M.D.

University of Michigan Journal of Law Reform

Hepatitis C virus (HCV) is highly prevalent in United States prisons and jails. In prisons and jails, rates of infection are ten to twenty times greater than national levels. And, more than thirty percent of all people living with HCV in the United States will spend time in prisons and jails in any given year. Rates are especially high among people who inject drugs (PWID), a population whose members are also likely to move between carceral settings and the community. Thus, addressing HCV among incarcerated populations would have a significant effect on the virus’s transmission both in and out of …

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

University of Michigan Journal of Law Reform

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities— a problem largely unaddressed …