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Full-Text Articles in Law

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder Dec 2022

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …


Developing An Advanced Intellectual Property Curriculum, Emily R. Lynch Aug 2022

Developing An Advanced Intellectual Property Curriculum, Emily R. Lynch

Undergraduate Student Research Internships Conference

The Faculty of Law at Western University is leading a group of industry partners and academic institutions to develop a free, self-paced, online IP curriculum consisting of case studies and practical examples from companies in three main areas: artificial intelligence, automotive, and medical technologies. The curriculum will provide training on generating, protecting, commercializing, and leveraging intangible assets in the knowledge-based economy.


Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran Jan 2022

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board …


Games Without Frontiers: The Increasing Importance Of Intellectual Property Rights In The People’S Republic Of China, James M. Cooper Oct 2021

Games Without Frontiers: The Increasing Importance Of Intellectual Property Rights In The People’S Republic Of China, James M. Cooper

Faculty Scholarship

Intellectual property (“IP”) protection in the People's Republic of China has been murky and amorphous. The country is currently enjoying a historic era with significant infrastructure and investment projects occurring as the Chinese consumer society substantially expands. These simultaneous trends require that China commit to the securitization and protection of IP rights to sustain its rapid economic growth.


Krawiec V. Manly, Abigail Demasi Jan 2021

Krawiec V. Manly, Abigail Demasi

NYLS Law Review

No abstract provided.


Brief For The Coalition Against Patent Abuse As Amicus Curiae In Support No Party, Charles Duan Dec 2020

Brief For The Coalition Against Patent Abuse As Amicus Curiae In Support No Party, Charles Duan

Amicus Briefs

Perhaps unexpectedly, a case on the constitutionality of the Patent Trial and Appeal Board has major significance to the pressing policy crisis of drug prices in the United States. Erroneously issued patents monopolize medical therapies, making them unaffordable or inaccessible to numerous Americans. The inter partes review proceedings that the Board conducts have repeatedly and successfully overcome such patents, enabling competition and dramatically lowering prices. This Court should ensure the continued viability of the Board and of inter partes review, by preserving the Board’s objectivity and independence from executive branch political influence.


Placebo Marks, Jake Linford Jan 2020

Placebo Marks, Jake Linford

Pepperdine Law Review

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer. A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …


Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey Jan 2020

Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey

Faculty Scholarship

This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.

In brief, Against Progress describes how in the 20th century intellectual property …


Brief Fof The R Street Institutte, Public Knowledge, And The Niskanen Center As Amici Curiae In Support Of Petitioner, Charles Duan, Meredith F. Rose Jan 2020

Brief Fof The R Street Institutte, Public Knowledge, And The Niskanen Center As Amici Curiae In Support Of Petitioner, Charles Duan, Meredith F. Rose

Amicus Briefs

The Java SE declarations of this case are simply a language of commands. As an application programming interface, or API, they exhibit features common to any language: a structured vocabulary and grammatical syntaxes, which a computer system understands as instructions to perform predefined tasks. What Oracle accuses as infringement is “reimplementation,” namely the building of a system, in this case Google’s Android platform, that repurposes the same words and syntaxes of the Java declarations.


How Can Congress Prevent The Issuance Of Poor Quality Patents? Questions For The Record For Colleen V. Chien, Colleen V. Chien Nov 2019

How Can Congress Prevent The Issuance Of Poor Quality Patents? Questions For The Record For Colleen V. Chien, Colleen V. Chien

Faculty Publications

This is a submission of responses by Prof. Colleen Chien to questions for the record posed by Sen. Thom Tillis (R-N.C.) and Chris Coons (D-Del.) at a October 30th hearing of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, entitled, "Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?"


Introduction, Summary, And Some Inferences, Kung-Chung Liu Sep 2019

Introduction, Summary, And Some Inferences, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

India and China make a perfect comparison pair in the area of IT industry, with each having its unique strength and potential for cooperation and synergy. Due to heavy involvement of Indian IT firms in software outsourcing arrangement by MNEs, the IP or patent resources are not important. This is especially true when compared with Chinese IT firms, which have much larger patenting volume (compared with other manufacturing sectors). Film industry in India and China has grown despite piracy. In other words, it prospered with little or no copyright protection. More importantly, piracy in China and India did not kill …


Automation & Predictive Analytics In Patent Prosecution: Uspto Implication & Policy, Tabrez Y. Ebrahim Jun 2019

Automation & Predictive Analytics In Patent Prosecution: Uspto Implication & Policy, Tabrez Y. Ebrahim

Georgia State University Law Review

Artificial-intelligence technological advancements bring automation and predictive analytics into patent prosecution. The information asymmetry between inventors and patent examiners is expanded by artificial intelligence, which transforms the inventor– examiner interaction to machine–human interactions. In response to automated patent drafting, automated office-action responses, “cloems” (computer-generated word permutations) for defensive patenting, and machine-learning guidance (based on constantly updated patent-prosecution big data), the United States Patent and Trademark Office (USPTO) should reevaluate patent-examination policy from economic, fairness, time, and transparency perspectives. By conceptualizing the inventor–examiner relationship as a “patenting market,” economic principles suggest stronger efficiencies if both inventors and the USPTO have better …


Brief Of The R Street Institute As Amicus Curiae In Support Of Petitioner, Charles Duan May 2019

Brief Of The R Street Institute As Amicus Curiae In Support Of Petitioner, Charles Duan

Amicus Briefs

It is a common but misleading premise of cases such as this one that the disappointed patent applicant has two options for judicial review: a 35 U.S.C. § 145 district court action and an appeal under 35 U.S.C. § 141. The applicant also has a non-judicial option: administrative remedies within the U.S. Patent and Trademark Office.

These administrative remedies add an important dimension to this case. The Court of Appeals adopted what it conceded was an atextual construction of § 145 expense recovery provision in order to ensure that § 145 actions were not cost-prohibitive to “small businesses and individual …


The Federal Circuit As An Institution, Ryan G. Vacca Jan 2019

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …


The Football As Intellectual Property Object, Michael J. Madison Jan 2019

The Football As Intellectual Property Object, Michael J. Madison

Book Chapters

The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and …


The Private Law Critique Of International Investment Law, Julian Arato Jan 2019

The Private Law Critique Of International Investment Law, Julian Arato

Articles

This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.


In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer Rothman Jan 2019

In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer Rothman

Faculty Scholarship at Penn Carey Law

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to …


Brief For The R Street Institute As Amicus Curiae In Support Of Respondents, Charles Duan Jan 2019

Brief For The R Street Institute As Amicus Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

The government and its agencies should be treated as a “person” that may petition to institute post-issuance review proceedings under the America Invents Act, for two reasons. First, permitting the government to seek review of patents under these proceedings best realizes the intent of Congress to make those proceedings widely available. Second, compared to the government’s alternative option for administratively challenging patents, AIA post-issuance review better serves important norms of procedure and governance, including transparency, due process, and separation of functions.


Argh, No More Pirating America’S Booty: Improving Copyright Protections For American Creators In China, Johnathan Ling Jan 2019

Argh, No More Pirating America’S Booty: Improving Copyright Protections For American Creators In China, Johnathan Ling

Fordham Intellectual Property, Media and Entertainment Law Journal

The advent of the internet brought about revolutionary changes and challenges to the world. Internet piracy is one area which is presenting new challenges, particularly to copyright holders such as artists, filmmakers, and creators. China has been a hotbed of piracy and is home to the second highest number of file sharing infringers in the world. China has made strides to improve its copyright protection, such as implementing a copyright law in 1990, as well as joining the World Trade Organization and signing on to the Agreement on Trade-Related Aspects of Intellectual Property Rights, which specifies minimum levels of intellectual …


Towards A Jurisprudence Of Fashion, Susan Scafidi Jan 2019

Towards A Jurisprudence Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu Nov 2018

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Peter K. Yu

No abstract provided.


Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan Oct 2018

Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government.


Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan Oct 2018

Brief For The R Street Institute And Engine Advocacy As Amici Curiae In Support Of Respondents, Charles Duan

Amicus Briefs

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government.


Balances Of Power Between Ip Creators: Ethical Issues In Scholarly Communication, Kristin Laughtin-Dunker Apr 2018

Balances Of Power Between Ip Creators: Ethical Issues In Scholarly Communication, Kristin Laughtin-Dunker

Library Presentations, Posters, and Videos

Scholarly communications often values free access above all else, but what happens when that drive for openness conflicts with ethical issues of consent and ownership? In this CARL IG Showcase panel, members of SCORE (Scholarly Communication and Open Resources for Education) will discuss some of the thorny issues of ethics and scholarly communication, including: consent (particularly among diverse communities outside of the institution) and digital collections, students as information creators / library as publisher, and decolonizing who we consider scholars and what we consider scholarship. This panel will feature speakers who will share current discussions and personal stories on issues …


The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman Jan 2018

The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman

Scholarly Articles

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals …


Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong Jan 2018

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Faculty Articles and Other Publications

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …


Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips Jan 2018

Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips

Faculty Scholarship at Penn Carey Law

For artists, nonprofits, community organizations and small-business clients of limited means, securing intellectual property rights and getting counseling involving patent, copyright and trademark law are critical to their success and growth. These clients need expert IP and technology legal assistance, but very often cannot afford services in the legal marketplace. In addition, legal services and state bar pro bono programs have generally been ill-equipped to assist in these more specialized areas. An expanding community of IP and Technology clinics has emerged across the country to meet these needs. But while law review articles have described and examined other sectors of …


Intellectual Property Law Gets Experienced, Victoria Phillips Jan 2018

Intellectual Property Law Gets Experienced, Victoria Phillips

Articles in Law Reviews & Other Academic Journals

Introduction: A decade ago, in Clinical Legal Education and the Public Interest in Intellectual Property Law, I described with my faculty colleagues our motivations for launching a public interest intellectual property law clinic at the American University Washington College of Law. That article introduced our goals and framework for a pioneering clinic framed around a variety of live-client student representations performed under close faculty supervision, weekly case rounds focusing on issues experienced directly by the students in their representations, and a seminar built around a year-long lawyering simulation addressing the public interest dimensions of intellectual property. In that article, we …


Fashion Law: More Than Wigs, Gowns, And Intellectual Property, Mark K. Brewer Dec 2017

Fashion Law: More Than Wigs, Gowns, And Intellectual Property, Mark K. Brewer

San Diego Law Review

[T]his article frames the emerging field of fashion law and synthesizes its substance from an international perspective in order to raise the profile of fundamental areas in which the law and fashion intersect as well as identify key areas for future research. Part II examines the background on fashion law, initially focusing on its origins and then examining IP, traditionally the main area of the field. Additionally, the Article defines, frames, and justifies the emerging field of fashion law. Because an exhaustive analysis of the emerging trends in fashion law is beyond the scope of this Article, Part III only …


The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R. K. Stroud Jun 2017

The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R. K. Stroud

Jonathan R. K. Stroud

No abstract provided.