Law Commons^™

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

Celebrating WCL Student Authors

No abstract provided.

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This article draws attention to several problems relating to indigenous ownership of both real and intellectual property, and their related impact upon the well-being and essential dignity of indigenous peoples. Part II of this article introduces the concept of indigenous ownership of real and intellectual property. Part III digs deeper into challenges to indigenous ownership of land, using the Shuar people of Ecuador as a case study. Part IV examines the problem of bioprospecting, as well as some of its implications, and discusses how the problem has affected the Shuar. It additionally summarizes a few steps toward developing an effective …

Demanding The Angels’ Share: Intellectual Property And Spiritual Organization In The Urantia Foundation, Andrew Ventimiglia

Studio for Law and Culture

This article explores the role that intellectual property plays as it shapes the circulation and use of ‘The Urantia Book,’ a divinely revealed text published in 1955 and embraced by a community of believers. For many modern spiritual communities – of which the Urantian community is a telling example – their coherence no longer lies in a centralized institution like the church but instead in a shared dedication to sacred texts and other religious media. Thus, intellectual property has become an effective means to administer the ephemeral beliefs and practices mediated by these texts. This article explores a number of …

Misguided Patent Reform: The Questionable Constitutionality Of First-To-File, Andrew L. Sharp

University of Colorado Law Review

American cigarette warning labels are lackluster compared to others around the world. To address this inadequacy, the FDA created nine graphic-image cigarette warning labels that were scheduled to appear on all cigarette packages sold in the US beginning in 2012. However, before they debuted, the D.C. Circuit Court of Appeals struck the labels down in R.J. Reynolds Tobacco Co. v. FDA, holding that they constituted compelled commercial speech in violation of the First Amendment. This Note argues that the R.J. Reynolds decision conflicts with the Supreme Court's commercial speech jurisprudence. Historically, the Supreme Court has applied limited First Amendment protection …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

Technological Cost As Law In Intellectual Property, Harry Surden

Publications

Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in substantive IP law.

More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory has …

Government Choices In Innovation Funding (With Reference To Climate Change), Joshua Sarnoff

College of Law Faculty

Huge amounts of money will soon be spent by governments and private entities to develop technology to reduce the costs of climate change mitigation and adaptation, and to deploy new energy and transportation infrastructures. Incredibly, we still lack any good idea of the best means of providing massive amounts of government or private money so as to promote the most innovation and technology diffusion at the lowest cost. This Article seeks to support better analyses of, and decision making regarding, the choices of government innovation-funding mechanisms by discussing the limits of current analyses and providing a taxonomy of such measures. …

Dissemination Must Serve Authors: How The U.S. Supreme Court Erred, Wendy J. Gordon

Faculty Scholarship

The US Congress has enacted expansions of copyright which arguably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as unconstitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote nonauthorial interests; apparently, Congress could enact provisions aiming to support noncreative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily …

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

Articles by Maurer Faculty

No abstract provided.

Don't Just Cover The Engineering Design Process, Patent It!, Philip A. Reed

STEMPS Faculty Publications

The article discusses the importance of understanding intellectual property (IP) concept for students of engineering design process. It highlights that IP classification are of four types which includes patent, trademarks and copyright. The article further offers brief information on process of obtaining a utility patent for technological inventions.

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

The Future Of Gene Patents And The Implications For Medicine, Jacob S. Sherkow, Henry Greely

Other Publications

The Supreme Court decision in Myriad Genetics struck down the patenting of human genomic DNA. What will this mean for genetic testing and medicine, more broadly?

Error Costs & Ip Law, Joseph S. Miller

Scholarly Works

A court in doubt about an ip statute’s scope can err in two ways. It can wrongly narrow the ip right’s reach, or wrongly broaden it. The latter error, however, is worse: A wrongly broadened ip statute effectively creates new property. To correct erroneous broadening, unlike erroneous narrowing, the legislature must thus eliminate a now-established property right. And that is very hard to do. Courts cannot, of course, avoid making at least some mistakes. Courts can, however, prefer the mistakes that are easier, not harder, for the legislature to correct. This essay explores this error-cost-based approach to ip statutes, as …

A Numerus Clausus Principle For Intellectual Property, Christina Mulligan

Scholarly Works

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear.

In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, …

Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar

GW Law Faculty Publications & Other Works

Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga

Law Faculty Publications

Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection ofthe information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

Articles

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

A Case For The Public Domain, Clark D. Asay

Faculty Scholarship

Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without …

Private Rights For The Public Good?, J. Janewa Oseitutu

Faculty Publications

The counterfeit medicines discussion is an example of how the use of a turbid rationale for greater intellectual property protections serves sophisticated private interests while potentially harming the public interest. The risk of harm created by counterfeit medicines provides a compelling counter-narrative to the access to medicines critique of intellectual property rights.

Intellectual property advocates and the pharmaceutical industry have portrayed poor global enforcement of intellectual property rights as contributing to the proliferation of dangerous counterfeit medications. Yet, the deliberate linkage in the literature between weak intellectual property rights and the harms caused by counterfeit medicines provides a justification for …

In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew Popper

Scholarly Articles in Law Reviews & Journals

The focus of this article is on the difficulty of securing in personam jurisdiction over foreign entities who steal information technology and intellectual property (IT and IP). The value of stolen IT and IP is somewhere in the range of a trillion dollars over the last decade. Given the current inability to prevent those losses or deter meaningfully those engaged in the misconduct, the article explores the core of the problem: the difficulty of satisfying the minimum contact/fairness requirements of Article III courts. The article addresses several alternative approaches that might allow for more efficient protection of IT and IP. …

And How: Mayo V. Prometheus And The Method Of Invention, Jacob S. Sherkow

Articles & Chapters

The Mayo Court's novel test for patent eligibility — whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field” — focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

Federal Trade Commission V. Actavis, Inc. And Reverse-Payment Or Pay-For-Delay Settlements, Jacob S. Sherkow

Articles & Chapters

An imminent US Supreme Court ruling should resolve one of the thorniest legal issues facing pharmaceutical companies today.

Do Trademark Lawyers Matter?, Deborah Gerhardt, Jon J. Lee

Faculty Articles

This Article empirically examines whether lawyers make a difference in prosecuting federal trademark applications and, if so, how much. Working from a wealth of data the USPTO released in 2012, we examine 5,489,586 federal trademark applications filed since 1984 to determine how much legal representation correlates with success rates in various stages of the trademark application process. First, we show how trademark publication and registration rates have changed over time. Against that background, we examine how these rates differ if the applicant had legal counsel. By illustrating these differences over time, we assess whether trademark registration has become more accessible …

Adjustments, Extensions, Disclaimers, And Continuations: When Do Patent Term Adjustments Make Sense?, Stephanie Plamondon Bair

Faculty Scholarship

The United States patent system represents a measured trade-off between two competing policy considerations: providing sufficient incentives to encourage the innovation and development of new and socially useful inventions; and ensuring that such inventions are readily available to the public at an affordable price. Although the default patent term is now twenty years from filing, various features of, and changes to, the patent system over the years have allowed patent owners to extend the duration of their patent monopolies, sometimes for several years. Such extensions, though seemingly insignificant when compared to the full patent term, have an enormous impact on …

The Tragedy Of The Anticommons: A Concise Introduction And Lexicon, Michael Heller

Faculty Scholarship

This article gives a concise introduction to the ‘tragedy of the anticommons.’ The anticommons thesis is simple: when too many people own pieces of one thing, nobody can use it. Usually, private ownership creates wealth. But too much ownership has the opposite effect – it leads to wasteful underuse. This is a free market paradox that shows up all across the global economy. If too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses. Conceptually, underuse in an anticommons mirrors the familiar problem of overuse in a ‘tragedy of the commons.’ The field of anticommons …

Reply - Commercialization Without Exchange, Michael J. Burstein

Articles

In this brief reply to Prof. Ted Sichelman’s comments on my article Exchanging Information Without Intellectual Property, I argue that justifications for intellectual property that rely on the incentives exclusive rights offer for commercialization are not economically distinguishable from traditional theories based on incentives to invent or create in the first instance. Because innovation is not an event but a process, innovative activities may be subject to misappropriation – and therefore under-production – at multiple points along the supply chain that runs from conception to commercialization. The grant of exclusive rights is an intervention that can be made at any …

The Look For Less: A Survey Of Intellectual Property Protections In The Fashion Industry, Nicole Giambarrese

Touro Law Review

Currently, there are no copyright protections for fashion designs in the United States. Proposed legislation that would provide such protection has been sitting in Congress for two years. Further, the Lanham Trademark Act only protects the origin of products, such as logos and trademarks. Even with the current available trademark protection, fashion houses, such as Louis Vuitton, and luxury jewelry firms, such as Tiffany & Company, have seen the Second Circuit make it more difficult to assert the protection. This increasing difficulty is due to a fear of overextending monopolies and taking an affirmative stance on who has the burden …