Law Commons^™

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

The Social Value Of Intellectual Property, Alina Ng Boyte

IP Theory

No abstract provided.

Patenting Genetic Information, David S. Olson, Fabrizio Ducci

Indiana Law Journal

The U.S. biotechnology industry got its start and grew to maturity over roughly three decades, beginning in the 1980s. During this period genes were patentable, and many gene patents were granted. University researchers performed basic research— often funded by the government—and then patented the genes they discovered with the encouragement of the Bayh-Dole Act, which sought to encourage practical applications of basic research by allowing patents on federally funded inventions and discoveries. At that time, when a researcher discovered the function of a gene, she could patent it such that no one else could work with that gene in the …

When Standards Collide With Intellectual Property: Teaching About Standard Setting Organizations, Technology, And Microsoft V. Motorola, Cynthia L. Dahl

IP Theory

No abstract provided.

A Production View On Patent Procurement, Ian C. Schick

IP Theory

When we think of a “production environment,” a law firm patent practice is not usually the first thing that comes to mind. But why not? Patent practices are highly process-oriented, and they certainly involve “manufacturing” work product, primarily in the form of new patent applications and office action responses. This article discusses how, with a production view on patent procurement, exploiting the principles of lean production can be a compelling way to adapt to tough issues presently roiling the patent ecosystem.

Our 19th Century Patent System, Gregory Reilly

IP Theory

The patent system is in flux. Concerns abound about the imperfect fit between traditional patent rights and the Information Age, excessive numbers of patents, overbroad patent rights, poor patent quality, and allegedly exploitative actors, like so-called “patent trolls.” In response, courts, commentators, and Congress have proposed, debated, and sometimes adopted a series of reforms and changes to patent rights, patent doctrines, and patent institutions. The America Invents Act of 2011 (AIA) introduced the most significant changes to the patent system since 1952 and was even described by one commentator (hyperbolically, as we will see) as “the most significant overhaul to …

Intellectual Property, Surrogate Licensing, And Precision Medicine, Jacob S. Sherkow, Jorge L. Contreras

IP Theory

The fruits of the biotechnology revolution are beginning to be harvested. Recent regulatory approvals of a variety of advanced therapies—Keytruda (pembrolizumab), Kymriah (tisagenlecleucel), and patisiran—have ushered in an age of “precision medicine” treatments that target patients’ specific genetic, physiological, and environmental profiles rather than generalized diagnoses of disease. Therapies like these may soon be supplemented by gene editing technologies such as CRISPR, which could enable the targeted eradication of deleterious genetic variants to improve human health. But the intellectual property (IP) surrounding precision therapies and their foundational technology remain controversial. Precision therapies ultimately rely—and are roughly congruent with—basic scientific information …

Poverty And Patents: Intellectual Property Policy And Economic Inequality, Wenkai Tzeng

Indiana Journal of Law and Social Equality

No abstract provided.

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Indiana Law Journal

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current …

Sheldon Halpern And The Right Of Publicity, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias

Maurer Theses and Dissertations

This work analyzes a distinctive characteristic of the globalizing Brazilian legal profession. Namely, intellectual property (IP) lawyers who once were leaders in opening the Brazilian economy and were key players in cross-border transactions are now losing ground to their peers with an expertise in international trade. The thesis of this article is that the manner in which Brazilian lawyers are being educated is in shambles. Generally speaking, Brazilian legal education has, overall, become degraded and provincial. Yet, Brazilian international trade lawyers, unlike Brazilian IP-lawyers, have overcome their deficient legal training by seeking legal education abroad. By traveling overseas, especially to …

Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Big Business, Big Government And Big Legal Questions, Michael Mattioli, Todd Vare

Articles by Maurer Faculty

No abstract provided.

The Origins Of American Design Patent Protection, Jason John Du Mont, Mark D. Janis

Indiana Law Journal

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes—copyright and trademark—have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs.

One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how …

"Justifying" The Public Interest In Patent Litigation, Scott A. Allen

Indiana Law Journal

No abstract provided.

Book Review. Music & Copyright In America: Toward The Celestial Jukebox By Kevin Parks, Michelle M. Botek

Articles by Maurer Faculty

No abstract provided.

Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu

Indiana Law Journal

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …

Ip Protection Of Fashion Design: To Be Or Not To Be, That Is The Question, Xinbo Li

IP Theory

No abstract provided.

Openness, Intellectual Property And Standardization In The European Ict Sector, Carl Mair

IP Theory

No abstract provided.

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

Book Review. From Edison To Ipod: Protect Your Ideas And Make Money By Frederick W. Mostert And Lawrence E. Apolzon, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Claims To Information Qua Information And A Structural Theory Of Section 101, Kevin Emerson Collins

Articles by Maurer Faculty

In this article, I start from the premises that claims to inventive information qua information are not and should not be patentable, and I pursue two lines of inquiry. First, I argue that a structural theory of Section l0l of the Patent Act provides a policy-driven, conceptually coherent and statutorily justified interpretation that explains why claims to inventive information qua information should be excluded from the realm of patentable subject matter. In brief, patentable subject matter must be restricted in this manner to preserve the duality of claiming and disclosing upon which the entire patent regime is constructed.

Second, I …

Propertizing Thought, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Constructive Nonvolition In Patent Law And The Problem Of Insufficient Thought Control, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Outsourcing And The Globalizing Legal Profession, Jayanth K. Krishnan

Articles by Maurer Faculty

The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which …

The Impact Of Open Source On Preinvention Assignment Contracts, Michael Mattioli

Articles by Maurer Faculty

This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. …

Supplemental Forms Of Intellectual Property Protection For Plants, Mark D. Janis

Articles by Maurer Faculty

A new hierarchy of intellectual property protection for plant innovation is emerging. Utility patent protection is poised to become the dominant intellectual property mechanism for plants in the U.S. and perhaps elsewhere. Plant breeder's rights systems continue to garner a dedicated following, especially in developing countries, as a means for complying with international intellectual property treaty obligations. But while utility patent and plant breeder's rights regimes have come to occupy the first tier of the intellectual property hierarchy for plants, other forms of intellectual property protection remain important, albeit in a supplemental role. This article surveys supplemental intellectual property strategies …

Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley

Articles by Maurer Faculty

No abstract provided.

U.S. Plant Variety Protection: Sound And Fury...?, Mark D. Janis, Jay P. Kesan

Articles by Maurer Faculty

This Article offers a critical reassessment of U.S. approaches to intellectual property protection for plant innovation. Three developments make this reassessment timely. First, the Supreme Court has finally confirmed that utility patent claims to plants and seeds satisfy the 35 U.S.C. Section 101 subject matter eligibility requirement. Plant innovation in the United States is now subject to utility patent protection, as well as concurrent protection under the Plant Variety Protection Act (PVPA). However, little work has been done to explain the role of PVPA protection in a system of concurrent protection, or to develop a coherent policy vision within which …

From International Treaties To Internet Norms: The Evolution Of International Trademark Disputes In The Internet Age, Ajay K. Mehrotra, Marcelo Halpern

Articles by Maurer Faculty

In today's dynamic, digital economy, there is a global clash between geographically bounded intellectual property rights and the limitless reach of the Internet. Traditionally, discrepancies in international intellectual property rights, such as trademark disputes, have been resolved through time-consuming, multilateral state-to-state treaty negotiations that have global harmonization as the primary goal.

With the explosion of e-commerce and the birth of a New Economy, however, such a traditional process is no longer economically viable. Instead, a new approach towards international intellectual property is fast emerging - one that rests not on treaties between multiple states, but on the private contracting of …