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Concerted Refusals To License Intellectual Property Rights, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

Unilateral refusals to license intellectual property rights are almost never antitrust violations, as is true of most unilateral refusals to deal. Concerted refusals to deal are treated more harshly under the antitrust laws because they can facilitate collusion or, in the case of technology, keep superior products or processes off the market.

In its en banc Princo decision a divided Federal Circuit debated whether Congress had protected concerted refusals to license from claims of patent misuse. The majority rejected the dissent’s argument that Congress had no such intent and then went on to hold that an alleged concerted refusal to …

Introduction To Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

This document contains the table of contents, introduction, and a brief description of Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford 2011).

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation Without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of …

Medical Device Patents, 2011 Edition, Lawrence Sung

Lawrence M. Sung

This product addresses the unique aspects of U.S. medical device patents, specifically durable medical equipment, and examines their grant and enforcement. Coverage includes information on prosecution, transfer, and litigation, including settlement. Patents for specific types of devices are addressed. The comprehensive treatment of patents in the medical specialties of orthopedics, cardiovascular disease, dentistry, ophthalmology, radiology, and surgery, among others, is a useful resource for readers, whether they seek competitive business insight or are curious about the history of medical technology development

Software Patents, Separation Of Powers, And Failed Syllogisms: A Cornucopia From The Enlarged Board Of Appeal Of The European Patent Office, Justine Pila

Justine Pila

The decision of the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) in G_0003/08 regarding the patentability of computer programs under the European Patent Convention (EPC) is considered, and the grounds for the EBA’s rejection of the President’s referral on the computer programs exclusion of Article 52(2)(c) & (3) analysed. An argument is made that the basis for that rejection is an interpretation of the President’s power of referral under Article 112(1)(b) EPC that is inconsistent with Articles 31–33 of the Vienna Convention, and that offends the constitutional principles on which the EBA relied. The EBA’s support …

The Problem With Intellectual Property Rights: Subject Matter Expansion, Andrew Beckerman Rodau

Andrew Beckerman Rodau

This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection …

Will International Trade Law Promote Or Inhibit Global Artificial Photosynthesis, Thomas A. Faunce

Thomas A Faunce

Artificial photosynthesis (AP) is an area of well-advanced research involving large international groups at the cutting edge of synthetic biology and nanotechnology. In simple terms it offers to produce a cheap source of hydrogen for fuel through using sunlight to split water, as well as making basic starches by a process involving absorption of carbon dioxide via the enzyme RuBisCO. As the proliferating numbers of university-based research teams working in this area begin to combine, there will be a natural escalation of the expected time for a global roll-out of AP domestic and international devices. Policy attention will then turns …