Law Commons^™

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …

The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …

Patents And The University, Peter Lee

Peter Lee

This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism”—the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors—in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial …

‘Sewing The Fly Buttons On The Statute:’ Employee Inventions And The Employment Context, Justine Pila

Justine Pila

Section 39(1) of the Patents Act 1977 governs the ownership of inventions devised by employees in the course of their employment. Introduced ‘to codify in a few lines the accumulated common law experience’ prior to 1977, it does not expressly differentiate between employment fields, and has been widely assumed to apply indiscriminately, without regard to the particular context of employment. The purpose of this article is to revisit that assumption. In the argument made, section 39(1) was built around a private sector paradigm the courts’ departure from which is supported by a ‘rational reason’ in the Shanks v Unilever plc …

Intellectual Property As An ‘Investment’ In International Law: A Question Of Access To Medicines Vs Access To Justice, Christopher Wadlow

Christopher Wadlow

No abstract provided.

The Great Pharmaceutical Patent Robbery, And The Curious Case Of The Chemical Foundation, Christopher Wadlow

Christopher Wadlow

In 1918, the United States confiscated virtually all German-owned intellectual property assets within its jurisdiction. Out of 6,000 patents in the chemical field, 4,500 were assigned for a very modest consideration to an newly-established entity, the Chemical Foundation, which was incorporated with the objective of licensing and managing them for the benefit of the United States chemical industry. This article describes the origins and activities of the Chemical Foundation, and considers whether it provides a useful model, or at least useful lessons, for the collective management of patents today.

The British Empire Patent 1901-1923: The ‘Global’ Patent That Never Was, Christopher Wadlow

Christopher Wadlow

Reflects on the lessons which unsuccessful efforts to introduce a British Empire patent prior to 1923 may offer for the European Community patent. Reviews the origin of the proposal in 1901, the state of patent law across the Empire at the time, the progress made at several Imperial conferences, key features of the 1919 memorandum and the issues discussed at the 1922 patent conference. Outlines the reasons for the failure of the 1923 proposals, including the problems created by Canada's claim for reciprocal treatment for its patents, and considers whether the EC Community patent has a greater prospect of success.