Law Commons^™

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold

Indiana Law Journal

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.

This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …

Artificial Intelligence, Copyright, And Copyright Infringement, Zach Naqvi

Marquette Intellectual Property Law Review

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Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

Palsgraf, Principles Of Tort Law, And The Persistent Need For Common-Law Judgment In Ip Infringement Cases, Jay Dratler Jr.

Akron Intellectual Property Journal

This short paper attempts to show how courts can build-and are building-a rational jurisprudence of secondary liability for IP infringement upon the foundation of these two great common-law principles of tort law: proximate cause and culpability. Besides this introduction (Part I), the paper has four sections. Part II discusses the notion of proximate cause and its application to cases assessing liability for IP infringement. It also explores a modem, economic test for proximate cause: the concept of least-cost avoider. Part III discusses the principle of culpability in cases of secondary liability and how to reconcile it with the traditional strictness …

Contributory Infringers And Good Samaritans, Mark Bartholomew

Akron Intellectual Property Journal

Part I of this Essay describes existing contributory infringement doctrine. Part II examines the circumstances in tort law where courts have found that the relationship between the defendant and the direct actor justifies imposition of a duty to control the latter. Interestingly, the ability to manage the actions of the direct actor is not the only requirement for imposing such a duty. Part III applies these findings from tort law to the specialized context of intellectual property.

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Law Faculty Scholarship

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Indirect Infringement From A Tort Law Perspective, Charles W. Adams

University of Richmond Law Review

No abstract provided.