Law Commons^™

Patents On A Shoestring: Making Patent Protection Work For Developing Countries, Sean A. Pager

Georgia State University Law Review

No abstract provided.

The Life Of An Author: Samuel Egerton Brydges And The Copyright Act 1814, Ronan Deazley

Georgia State University Law Review

No abstract provided.

The Normative Foundations Of Trademark Law, Mark P. Mckenna

Journal Articles

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread contemporary understanding, early trademark cases were decidedly producer-centered. Trademark infringement claims, like all unfair competition claims, were intended to protect producers from illegitimate attempts to divert their trade. Consumer deception was relevant in these cases only to the extent it was the means by which a competitor diverted a producer's trade. Moreover, American courts from the very beginning protected a party against improperly diverted trade in part by recognizing a narrow form ofproperty rights in trademarks. Those rights were …

Here There Be Pirates: How China Is Meeting Its Ip Enforcement Obligations Under Trips, Kate Colpitts Hunter

San Diego International Law Journal

This paper will examine whether China is meeting its obligations to protect IP rights under the TRIPS agreement, an international intellectual property trade agreement China acceded to upon joining the World Trade Organization (WTO). Moreover, it will address whether China's increased IP protection in law equals increased protection in fact. Part II will describe China's legal structure, its TRIPS obligations upon joining the WTO, and China's IP laws. Part III will discuss China's enforcement of these IP laws from the perspective of developed nations and from China's own perspective. Part IV includes suggestions on how China can improve its enforcement …

Freedom-To-Operate In The Crop Sciences: Procedure, Stanley P. Kowalski

Law Faculty Scholarship

Freedom to operate (FTO) is the ability to proceed with research, development and commercialization of a crop science product, while fully accounting for any potential risks of infringing activity, that is, whether a product can be made, used, sold, offered for sale, or exported, with a minimal risk of infringing the unlicensed intellectual property rights (IPRs) or tangible property rights (TPRs) of another. An FTO analysis begins with the ‘FTO team’ systematically dissecting the crop science product into the components, combination of components, processes and germplasm that went into its research and development. This is followed by generating a series …

Acquisition Licenses In Tennessee: An Annotated Model Tennessee Acquisition License Agreement, Joan Macleod Heminway

Scholarly Works

The coauthors have constructed a model license agreement for use in connection with acquisitions, annotated with footnotes on substantive law and legal drafting issues. This model is intended to serve as a research piece, teaching tool, and practitioner resource. This agreement is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.

Testing The Boundaries Of Copyright Protection: The Google Books Library Project And The Fair Use Doctrine, Nari Na

Cornell Journal of Law and Public Policy

No abstract provided.

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Law and Contemporary Problems

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative …

The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan

Law and Contemporary Problems

Jürgen Habermas' influential historical work, The Structural Transformation of the Public Sphere, describes a moment in the social and political history of Europe in which a rising bourgeoisie was able to gather in salons and cafes to discuss matters of public concern. The public sphere represented a set of sites and conventions in the eighteenth century in which (almost exclusively male) members of the bourgeoisie could forge a third space to mediate between domestic concerns and matters of state. Here, Vaidhyanathan examines one particular Public Sphere experiment--the rise of a global Free Culture Movement that aims to limit the spread …

A Copyright Conundrum: Protecting Email Privacy, Ned Snow

Faculty Publications

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the "forward" button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune …

Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling

Law and Contemporary Problems

Van Houweling explores both the benefits and failings of conservation easements on land on the one hand and the licensing commons on the other. Conservation easement The tools of cultural environmentalism in the lights of objections to conservation easements and more general concerns with complicated and fragmented property rights are also considered. Among other things, she provides clear theoretical differences between the public domain, where freedom is based on the absence of property rights, and the licensing commons, where freedom is based on the absence on the preemptive exercise of the property rights by the rights holder in order to …

Network Rules, Susan P. Crawford

Law and Contemporary Problems

Crawford compares the debate between the telcos and the online companies over broadband access regimes often called the "network neutrality" debate to the ongoing tussle between intellectual property maximalists and "free culture" advocates which are strikingly parallel sets of arguments. The maximalists claim that creativity comes from lone genuises (the romantic author) who must be given legal incentives to works but intellectual property scholars have carefully examined the incentives of their arguments and have pointed out that granting overly strong property rights to copyright holders might not be socially appropriate. Moreover, the network providers claim that they (the romantic builders) …

The Invention Of Traditional Knowledge, Madhavi Sunder

Law and Contemporary Problems

Sunder argues that the failure of intellectual property to recognize the contributions of traditional and natural sources cannot be rectified by mere payment and she posits a non-monetizable, non-utilitarian benefit in terms of worth or dignity in having one's contribution as the subject labelled of an intellectual property right. Foregrounding the important role of "raw materials" in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials-often indigenous peoples who have cultivated the earth's biodiversity and who hold "traditional knowledge" about that biodiversity. Moreover, focus on …

The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai

Law and Contemporary Problems

Rai points out the great limitations of some conventional measures of efficiency and cites quality-adjusted life years (QALY), an alternative measure that is actually used in making health-care decisions, as an example. the ability to pay. Quantifying benefits in terms of QALY does not give us a neutral measure of worth, of course but it does expose the value judgments being made and give us a yardstick other than intuition or anecdote for measuring effects. Thus, she argues that rather than giving up on economic analysis, other ways to broaden its scope should be sought.

Two Thoughts About Traditional Knowledge, William Fisher

Law and Contemporary Problems

Fisher argues the traditional knowledge of environmentalism and the public domain ideas by presenting two combined related themes involving the British colonist of Native Americans. The idea of devaluing the Indian's nonacquisitive, natural, respectful way of living lightly upon the land while conserving it, and fostering imperialism and unjust conquest. Among other things, he formulates three parallel provisions to the TRIPS Agreement to increase the leverage of the countries in determining the terms on which flora, fauna, medicinal knowledge, folklore, and traditional art forms are exploited by others.

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

The Government Giveth, And The Government Taketh Away: Patents, Takings, And 28 U.S.C. § 1498, Justin Torres

ExpressO

The argument over whether patents are protected by the Fifth Amendment’s Takings Clause has largely been confined to normative grounds. To the extent that these arguments reference the 1910 Patent Act, the statute that enables patentees to recover “reasonable and entire” compensation for infringement by the government (later codified as 28 U.S.C. § 1498), they conclude that the provision adds little to the argument. And in Zoltek Corp. v. United States, the Court of Appeals for the Federal Circuit determined that the very existence of § 1498 indicates that there is no Fifth Amendment claim for patent infringement, since an …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …

Stifling Or Stimulating - The Role Of Gene Patents In Research And Genetic Testing, Lawrence M. Sung

Congressional Testimony

No abstract provided.

Regulating Cyberbullies Through Notice-Based Liability, Brad Areheart

College of Law Faculty Scholarship

With the growth of the Internet's uses and abuses, Internet harassment is making headlines. Given its immediacy, anonymity, and accessibility, the Internet offers an unprecedented forum for defamation and harassment. The salient problem with such cyberbullying is that victims are typically left without adequate recourse. The government should provide recourse by curtailing the near absolute immunity Internet Service Providers (ISPs) currently enjoy under the Communications Decency Act (CDA) and implementing a notice and take-down scheme similar to that for copyright infringement under the Digital Millennium Copyright Act (DMCA) for certain torts.

An Economic Dynamic Approach To The Infrastructure Commons, David M. Driesen

College of Law - Faculty Scholarship

This brief essay comments upon and extends Brett Frischman's idea of the infrastructure commons, i.e. that certain commons resources function as infrastructure. After suggesting some refinements of the infrastructure commons theory, this essay shows how an economic dynamic approach to law (see David M. Driesen, The Economic Dynamics of Environmental Law (MIT Press 2003) can help strengthen the case for proper management of the infrastructure commons, helping bolster the case for preserving the commons and identifying some of its limitations. The essay, like Professor Frischman's original article, applies infrastructure commons theory to both environmental and intellectual property resources.

Lexis V. Westlaw For Research - Better, Different, Or Same And The Qwerty Effect?, Jon R. Cavicchi

Law Faculty Scholarship

There are synchronistic moments when in the process of writing. While contemplating this article, an email message made its way to my desk, past Pierce Law Center's spam firewall with the following subject line: "Pepsi v. Coke-Tell Us--Get $10." Do IP researchers choose Lexis or Westlaw justified by taste? Surely you jest, some voice said to me. Repressing this message, I proceeded to compare platform content, perform literature searches, and poll students and IP professors.

Yet another synchronistic moment came as the email from those taking the poll steamed into my email. Many IP professors indicated that they made the …

One Step Outside The Country, One Step Back From Patent Infringement, Katherine E. White

Law Faculty Research Publications

No abstract provided.

Illinois Tool Works: Allocating The Burden Of Proving Market Power In Patent Tying Cases, Dennis J. Abdelnour

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Patent Ships Sail An Antitrust Sea, Joseph Scott Miller

Seattle University Law Review

The deeper truths evoked by patent ships sailing an antitrust sea are three. First, free competition is the pervasive, baseline reality, the background norm; patent protection is the temporary, partial exception. Second, we grasp both patent and antitrust policy with a common science: economics. Third, although neither patent nor antitrust law doctrines are good tools for fixing fundamental problems in the other body of law, both bodies of law help us better understand the shortcomings of the other. I explore these ideas in turn, below.

Propertizing Thought, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Pto Rulemaking In The Twenty-First Century: Defining The Line Between Strategic Planning And Abuse Of Authority, Brian E. Mack

Fordham Law Review

No abstract provided.

Independent Ink At The Crossroads Of Antitrust And Intellectual Property Law: The Court's Holding Regarding Market Power In Cases Involving Patents And Implications In Cases Involving Copyrights, Leonard J. Feldman, Rima J. Alaily, Chad D. Farrell

Seattle University Law Review

By eliminating the market power presumption for patent holders, Independent Ink calls into question the presumption's continued validity for tying arrangements involving copyrights. While the Court's holding directly applies only to patents, we present three reasons why, after Independent Ink, the presumption can no longer be viable in antitrust lawsuits challenging a tying arrangement involving a copyrighted product. First, the Court's rationale for eliminating the presumption including citations to extensive academic writings, agency guidelines, and legislative amendments precludes the presumption's continued application in any other context. Second, copyrights are significantly less likely than patents to confer market power because …