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Articles 1 - 30 of 118
Full-Text Articles in Law
The Patent Option, Daniel J. Gervais
The Patent Option, Daniel J. Gervais
Daniel J Gervais
There is a shift in the shape of intellectual property (IP) tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right …
Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais
Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais
Daniel J Gervais
This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …
Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann
Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann
Laura A. Heymann
Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.
When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …
A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho
A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho
Cynthia M Ho
This Article discusses an important, yet understudied threat to patent, as well as other intellectual property sovereignty under TRIPS: pending and potential challenges by companies under international agreements protecting investments. Although such agreements have existed for decades, Philip Morris and Eli Lilly are blazing a new path for companies to sue countries they claim interfere with their intellectual property rights through so-called investor-state arbitrations. These suits seek hundreds of millions in compensation and even injunctive relief for alleged violations of internationally agreed intellectual property norms. The suits fundamentally challenge TRIPS flexibilities at the very time the Declaration on Patent Protection …
The Patent Option, Daniel Gervais
The Patent Option, Daniel Gervais
Daniel J Gervais
State Immunity And The Patent Trial And Appeal Board, Tejas N. Narechania
State Immunity And The Patent Trial And Appeal Board, Tejas N. Narechania
Tejas N. Narechania
Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean
Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean
Daniel Harris Brean
Patent Enforcement In Cyberterritories, Daniel Harris Brean
Patent Enforcement In Cyberterritories, Daniel Harris Brean
Daniel Harris Brean
The Psychology Of Patent Protection, Stephanie Plamondon Bair
The Psychology Of Patent Protection, Stephanie Plamondon Bair
Stephanie Bair
This Article offers the first comprehensive assessment of the major justifications for our patent system using a behavioral psychology framework. Applying insights from the behavioral literature that I argue more accurately account for the realities of human action than previous analytical tools, I critically evaluate each of the major justifications for patents — incentive theory, disclosure theory, prospect theory, commercialization theory, patent racing theory, and non-utilitarian theories. I ask whether our current patent system is an effective regime for meeting the stated goals of these accounts. When the answer to this question is no, I again turn to the behavioral …
Adjustments, Extensions, Disclaimers, And Continuations: When Do Patent Term Adjustments Make Sense?, Stephanie Plamondon Bair
Adjustments, Extensions, Disclaimers, And Continuations: When Do Patent Term Adjustments Make Sense?, Stephanie Plamondon Bair
Stephanie Bair
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 …
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel
Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel
Katharine Van Tassel
On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.
Led by the moderator, participants at the Forum focused generally on three broad …
Business Methods, Technology, And Discrimination, Daniel Harris Brean
Business Methods, Technology, And Discrimination, Daniel Harris Brean
Daniel Harris Brean
Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark
Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark
Daniel Harris Brean
Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania
Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania
Tejas N. Narechania
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …
Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte
Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte
Christopher B. Seaman
More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive …
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker
Srividhya Ragavan
The paper below largely is an extract of the testimonial filed by the authors to the Secretary of the ITC in response to the Notice on the Federal Register dated August 29, 2013 titled Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy. Where required, the paper also draws from the written submissions that the authors made to the United States Trade Representative’s (hereinafter, USTR) office on the related question of whether India deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property …
Pro Se Patent Appeals At The Federal Circuit, Daniel Harris Brean
Pro Se Patent Appeals At The Federal Circuit, Daniel Harris Brean
Daniel Harris Brean
Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan
Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan
Srividhya Ragavan
In light of the recent outrageous price-spiking of pharmaceuticals, this Article questions the underlying justifications for exclusive rights conferred by the grant of a patent. Traditionally, patents are defined as property rights granted to encourage desirable innovation. This definition is a misfit as treating patents as property rights does a poor job of defining the limits of the patent rights as well as the public benefit goals of the system. This misfit gradually caused an imbalance in the rights versus duties construct within patent law. After a thorough analysis of the historical and philosophical perspectives of patent exclusivity, this Article …
Nontechnical Disclosure, Jonas Anderson
Nontechnical Disclosure, Jonas Anderson
J. Jonas Anderson
Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman
Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman
Christopher B. Seaman
Improving Patent Quality With Applicant Incentives, Stephen Yelderman
Improving Patent Quality With Applicant Incentives, Stephen Yelderman
Stephen Yelderman
This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …
Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova
Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova
Robin C Feldman
Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen
Ping-Hsun Chen
On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …
American Innovation And The Limits Of Patent Law: A Response To William Hubbard, Competitive Patent Law, Christopher B. Seaman
American Innovation And The Limits Of Patent Law: A Response To William Hubbard, Competitive Patent Law, Christopher B. Seaman
Christopher B. Seaman
In his recent article Competitive Patent Law, Professor William Hubbard makes a valuable contribution regarding an underexplored aspect of patent law’s ability to encourage innovation — namely, “whether U.S. patent law can be tailored to provide U.S. innovators with enhanced incentives to invent” compared to foreign rivals, and thus by extension make American firms more competitive in the global marketplace. This brief response addresses three aspects of Professor Hubbard’s thoughtful and well-written article. First, it critiques the article’s contention that the United States is currently facing an “innovation gap.” Second, it critically evaluates the claim that patent law can play …
Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman
Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman
Christopher B. Seaman
Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by …
The Case Against Federalizing Trade Secrecy, Christopher B. Seaman
The Case Against Federalizing Trade Secrecy, Christopher B. Seaman
Christopher B. Seaman
Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights. This Article engages in the first systematic critique of the claim that federalizing …
From De Novo Review To Informal Deference: An Historical, Empirical, And Normative Analysis Of The Standard Of Appellate Review For Patent Claim Construction, Jonas Anderson, Peter Menell
From De Novo Review To Informal Deference: An Historical, Empirical, And Normative Analysis Of The Standard Of Appellate Review For Patent Claim Construction, Jonas Anderson, Peter Menell
Peter Menell
Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its "mongrel" mixed fact/law character, the Federal Circuit’s adherence to the view that claim construction is a pure question of law subject to de novo appellate review produced …