Intellectual Property Law Commons^™

Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski

Law Faculty Scholarship

The refugee crisis at the US Southern Border is due to multiple compounding factors: Latin America’s over-reliance on commodities, failure to economically diversify to innovation, and a lack of coherent US strategic engagement with the region. The situation is hemispheric; imploding states and a serious humanitarian calamity loom ever larger on the southern horizon. Since this represents a long-term problem requiring strategic and sustainable development initiatives, a new Alliance for Progress for the 21st Century is proposed which will build partnerships to advance innovation-driven development across the region.

Government-Sponsored Patent Monetizing Entities, Garry A. Gabison

The Journal of Business, Entrepreneurship & the Law

Government-sponsored patent assertion entities have materialized all over the world. This article looks at the market failure associated with the patent system. These entities have an opportunity to address these market inefficiencies. But, these entities can damage the innovation more by decreasing competition and increasing protectionism. This article looks at three such entities and argues that the US could use such an entity.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Patent Enforcement In Cyberterritories, Daniel Harris Brean

Cardozo Law Review

3D printing technology has exposed a gap in patent protection. Thanks to 3D printers, physical products can be created and sold digitally in the form of CAD files, and consumers printing the products are effectively manufacturers. But current law would treat a product patent as being directly infringed only when the physical product is made, used, offered for sale, or sold, making it difficult to target the digital source of the infringement. While past scholarship has fashioned new legal constructs to close this gap (e.g., expanding patent eligibility or extending infringement case law) this Article considers whether a proper, analogous …

Trade Secret Protection In Japan And The United States: Comparison And Recommendations, Thomas Landman

Brooklyn Journal of International Law

Trade secret law is a vital, yet often misunderstood, form of intellectual property law. As economic superpowers, both Japan and the United States realize that effective trade secret protection is essential for the prosperity of their domestic economies, and both nations have enacted laws to protect their trade secrets. While both Japan and the United States are signatories to the TRIPS agreement and therefore provide a shared baseline standard of trade secret protection, cultural and systemic differences between the two nations have resulted in differences in the way each nation implements its trade secret laws. This Note traces the history …

How The United States Stopped Being A Pirate Nation And Learned To Love International Copyright, John A. Rothchild

Pace Law Review

From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them.

This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more …

Data Exclusivities And The Limits To Trips Harmonization, Peter K. Yu

Faculty Scholarship

2019 marks the silver anniversary of the WTO TRIPS Agreement. Policymakers and commentators remain deeply divided about the strengths and limitations of this agreement. On the one hand, they marvel at its success in establishing international minimum standards for the protection and enforcement of intellectual property rights. On the other hand, they widely criticize the agreement for imposing high "one size fits all" standards upon developing countries.

Regardless of one's perspective, the harmonization project advanced by the TRIPS Agreement, and continued through TRIPS-plus bilateral, regional and plurilateral agreements, has been at the forefront of the international intellectual property debate. While …

In Lieu Of Moral Rights For Ip-Wronged Music Vocalists: Personhood Theory, Moral Rights, And The Wppt Revisited, Tuneen E. Chisolm

St. John's Law Review

(Excerpt)

The Introduction of this Article has identified some of the noneconomic harms of concern. Part I summarizes and compares copyright ownership, control, and existing protections for authors of music compositions and sound recordings under the Copyright Act. It also summarizes pertinent music industry practices that impact third party use of recorded vocalist performances. Part II provides a foundation for understanding the nature of legal protections for creative works and the philosophical underpinnings of copyright law and moral rights, comparing utilitarianism and natural rights theory to personhood theory. It also provides a brief explanation of moral rights. Part III looks …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

World Trade, Imperial Fantasies And Protectionism: Can You Really Have Your Cake And Eat It Too?, Csongor I. Nagy

Indiana Journal of Global Legal Studies

Populism is telling voters what they want to hear, knowing that it is neither true, nor feasible. Lately, trade and economic integration has seen the spread of untrue and unfeasible tenets, which have proved to be highly popular and have received a warm welcome. Fueled by imperial fantasies and nostalgia for the long-gone era of protectionism, the tectonic movements of world trade have generated a good deal of populist resistance based on the self-delusion that the Gordian knot of world trade needs not to be disentangled but can be simply cut. Unfortunately, however popular and appealing these allegations are, they …

The Intricate Relationship Between Intellectual Property Exhaustion And Free Movement Of Goods In Regional Organizations: Comparing The Eu/Eea, Nafta, And Asean, Irene Calboli

Faculty Scholarship

This article explores the relationship between national rules on the exhaustion of intellectual property (IP) rights and cross-border trade within regional organizations. In particular, this article compares three distinct approaches adopted by: the European Union (EU); the North American Free Trade Area (NAFTA); and the Association of South East Asian Nations (ASEAN). Based on this comparison, this article concludes that in order to effectively promote the free movement of goods, members of regional organizations need to consistently adopt national policies on IP exhaustion that support, at least, a system of regional exhaustion such as currently found in the EU. However, …

A Mathematical Solution To The Sine Of Madness That Is Pharmaceutical Compulsory Licensing Under The Trips Agreement And The Doha Declaration, Ashley E. Sperbeck

Marquette Intellectual Property Law Review

A viable economic solution is necessary to address the shortcomings, textual ambiguities, and deficiencies engulfing international patent protection, leading to the inability of LDCs facing public health crises or national emergencies and lacking pharmaceutical manufacturing facilities to obtain generic pharmaceuticals. This Note poses a solution to this problem via another Amendment to the TRIPS Agreement and the Doha Declaration, which provides a mathematical framework to determine when and under what circumstances a compulsory license should be granted. Furthermore, this Note contemplates establishment of a WTO subcommittee to oversee this proposed solution and to ensure compliance with this Amendment. This concrete …

Can “Imfcoin” Be Scaruffi's Moneta Immaginaria?, Alexander M. Heideman

Marquette Intellectual Property Law Review

Cryptocurrencies have taken the world by storm. But these decentralized and unregulated digital fiat currencies have more in common with the currencies of ages past than many believe. These commonalities may result in the incorporation of new cryptocurrencies into older institutions. One such institution is the International Monetary Fund's Special Drawing Rights (SDRs), which has bene relegated to an afterthought in the international monetary system since the Nixon Shock in 1971. The Fund's Managing Director recently made comments that indicated that the Fund is exploring the incorporation of a cryptocurrency into the framework of the SDR, a change which China …

Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie

Marquette Intellectual Property Law Review

This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.

Controlling Cargo: Amazon’S Predatory Attempt To Disrupt The Fashion Industry By Dominating The International Transportation Of Goods, Mary Kate Brennan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Thou Shalt Not Steele: Reexamining The Extraterritorial Reach Of The Lanham Act, James C. Gracey

Vanderbilt Journal of Entertainment & Technology Law

US courts have applied domestic trademark law to actions taken outside of the United States's borders for years, but the US Supreme Court recently revamped the presumption against extraterritoriality, a canon of statutory interpretation. The presumption against extraterritoriality promotes a judicial means of respecting the sovereignty of foreign states by disallowing the application of domestic law to foreign acts. However, the Supreme Court interpreted the Lanham Act, the United States's domestic trademark law, to have extraterritorial reach in Bulova Watch Co. v. Steele. This Note traces the recent evolution and strengthening of the presumption before analyzing how circuit courts have …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais

Michigan Journal of International Law

This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade …

Nationalizing Trips: An Examination Through Exceptions, 18 J. Marshall Rev. Intell. Prop. L. 285 (2019), Evan Tallmadge

UIC Review of Intellectual Property Law

What should not be patentable? The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) codifies certain categories of subject matter that nations can exclude from patent protection. This Article examines how nations have interpreted these exclusions through an analysis of their national manuals of patent examining procedure and more importantly what explicit exceptions to patentability these countries have listed. The Article proceeds to analyze both the similarities and differences in approaches towards exclusions that attempt to ban the same subject matter from patentability and differences in what countries have chosen to bar from patenting. The Article concludes with an …

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

Articles

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

From Territorial To Universal-The Extraterritoriality Of Trademark Law And The Privatizing Of International Law, P. Sean Morris

Cardozo Arts & Entertainment Law Journal

Legal doctrines, aided and abetted by interpretations of the courts, carry the force of law. The implication is that when courts settle matters, they often go beyond the scope of current intellectual property legislation. Furthermore, global problems in intellectual property may require the participation of private intellectual property rights owners to bring suit. This, in turn, often creates more problems due to the territorial, trans-territorial, and extraterritorial reach of the law, especially with respect private trademark rights. I explore this and other legal conundrums in this Article. The key concern addressed in the Article is how far trademark law is …

Exhaustion In The Service Of Progress, Ofer Tur-Sinai

Cardozo Arts & Entertainment Law Journal

Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the patentee's rights with respect to that item, leaving the purchaser and subsequent owners free to use or resell it without fear of an infringement lawsuit. In 2017, the U.S. Supreme Court issued its landmark decision in Impression Products v. Lexmark International, which strengthened the exhaustion doctrine in various significant ways. The Court held that an authorized sale of a patented item exhausts all patent rights with respect to that item, regardless of any restrictions on use or resale the patentee purports to impose. The Court …

Trends In Fashion Law: Striking The Proper Balance Between Protecting The Art Form And Sustaining A Thriving Online Market, Elisabeth Johnson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Arms And The Man: Strategic Trade Control Challenges Of 3d Printing, Arjun Banerjee

International Journal of Nuclear Security

3D printing is on the verge of confronting Customs and other security agencies with a whole new set of mind-boggling problems. With the tremendous reach of the Internet worldwide, virtual blueprints to weapon parts, components and accessories of drones, narcotic drugs and psychoactive substances, all strategic trade items, as well as other restricted items such as pornographic material, can be proliferated and printed out swiftly by any individual or organization with access to a 3D printer. Intellectual Property Rights are also endangered by these machines. Technology is forever outpacing fast antiquating legal institutions, and security systems, which require revamping to …

The User Rights Database: Measuring The Impact Of Opening Copyright Exceptions, Sean Flynn, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

International and domestic copyright law reform around the world is increasingly focused on how copyright exceptions — a.k.a. “user rights” —should be expanded to promote maximum innovation, creativity, and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We are developing such a tool, which we …

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Tpp, Rcep And The Future Of Copyright Norm-Setting In The Asian Pacific, Peter K. Yu

Faculty Scholarship

The past decade has seen two mega-regional intellectual property norm-setting exercises focusing on countries in the Asian Pacific region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Taken together, these two mega-regional norm-setting exercises will have unlimited potential to shape future copyright norms in the Asian Pacific region.

For countries involved in either the TPP or RCEP negotiations, legal obligations concerning new protection and enforcement standards will have to be incorporated into domestic law once the applicable agreement enters into force. These standards can be quite burdensome, as they often exceed what is currently required by the …

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

Brooklyn Law Review

Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately—if …

Us China Trade Dispute Over Intellectual Property, Mozi Luo

Master's Projects

How have Section 301 investigations impacted trade relations between China and the U.S. in clean energy area, and between Japan and the U.S. in semiconductor and auto part areas, and does the impact provide a guide for the possible outcome of the upcoming Section 301 investigation of China?

After President Donald Trump’s memorandum on August 14, 2017 stating that China’s behavior regarding intellectual property rights (IPR) and the high technology industries adversely influences the U.S. economy, the United States Trade Representative (USTR) declared the initiation of a section 301 investigation of China on the topic of technology transfer and intellectual …