Intellectual Property Law Commons^™

You Can Run But You Can't Hide: Cell Phone Tracking Data Do Not Receive Fourth Amendment Protection, Merissa Sabol

SMU Science and Technology Law Review

No abstract provided.

Much Ado About The Tpp’S Effect On Pharmaceuticals, Emily Michiko Morris

SMU Science and Technology Law Review

No abstract provided.

Trade Secrets, Safe Harbors, And International Trade, W. Keith Robinson

SMU Science and Technology Law Review

The Trans-Pacific Partnership (TPP) is a proposed trade agreement that establishes terms for trade and business between the United States and eleven Pacific Rim nations. The United States has withdrawn from the TPP, but interest in the agreement remains because some of its provisions serve as a template for future international trade deals. This article focuses on the TPP provisions concerning trade secrets and Internet Service Provider (ISP) Safe Harbors. While both provisions mirror U.S. law, they do lack certain "safeguards." Commentators have observed that the absence of these safeguards unfairly favor the interests of large corporations and rights holders …

Copyright, Rights Management, And The Trans-Pacific Partnership: Best Practices, Cole Davis

SMU Science and Technology Law Review

No abstract provided.

Multinational Efforts To Limit Intellectual Property Income Shifting: The Oecd’S Base Erosion And Profit Shifting (Beps) Project, Jeffrey Maine

SMU Science and Technology Law Review

No abstract provided.

Amending Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

The Supreme Court’s recent treatment of the law of patent eligibility has introduced an era of confusion, lack of administrability, and, ultimately, risk of under-investment in research and development. As a result, patent law — and in particular the law governing patent eligibility — is in a state of crisis. In this Article I show why, despite this crisis, it is highly unlikely that the Supreme Court will correct itself and solve these problems. I therefore proceed to consider how Congress might — consistent with its constitutional authority — correct these problems through appropriate legislation. I identify principles that should …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Intellectual Property Law, David L. Mccombs, Phillip B. Philbin, Ellie Simpson, Bethany Hrischuk

SMU Annual Texas Survey

No abstract provided.

International Intellectual Property Law, Caroline Berube, Susan Brushaber, Amanda Covington, Manish Dhingra, Robin S. Fahlberg, Carolina Keller Jupitz, Jennifer Kwon, Mrityunjay Kumar, Daniel Marugg, Bruce A. Mcdonald

The International Lawyer

No abstract provided.

Foreword: The Food Law Era, Nathan Cortez

SMU Science and Technology Law Review

No abstract provided.

Was There A Body In The Trunk: Volatile Organic Compounds In The Trial Of Casey Anthony And The Evolving Search For A Chemical Profile For Human Decomposition, John Ensiminger, Megan A. Ferguson, L. E. Papet

SMU Science and Technology Law Review

No abstract provided.

Only A Pawn In The Game: Rethinking Induced Patent Infringement, W. Keith Robinson

Faculty Journal Articles and Book Chapters

A party that causes another to infringe a patent may be liable for induced infringement. Recently, the Supreme Court and the Federal Circuit have interpreted the inducement statute in a way that may be problematic. For example, in a suit for induced patent infringement a plaintiff must show that an accused party had specific intent to cause infringement. The defendant can rebut allegations of induced infringement by showing that he had a good faith belief that he did not infringe the patent. However, a defendant’s good faith belief that the patent is invalid is no longer a defense to inducement. …

Awarding Attorney Fees And Deterring 'Patent Trolls', W. Keith Robinson

Faculty Journal Articles and Book Chapters

A court may award attorney fees to a prevailing party in a patent trial under exceptional circumstances. Since 2005, courts had applied a rigid formula to determine whether a case was exceptional. In the summer of 2014, the Supreme Court rejected this rigid test. Instead, the Court held that an exceptional case is “simply one that stands out from others.” Finding a case exceptional, the Court said, was at the discretion of the district court and only reviewable on appeal for an abuse of discretion.

A little over a year later, one interesting question is: how do district courts now …

Patent Assertion Entities, Reasonable Royalties, And A Restitution Perspective, W. Keith Robinson

Faculty Journal Articles and Book Chapters

No abstract provided.

Confusing Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces …

On Designation Of North Korea As A State Sponsor Of Cyberterrorism, Justin L. Koplow

SMU Science and Technology Law Review

No abstract provided.

Patent Law Challenges For The Internet Of Things, W. Keith Robinson

Faculty Journal Articles and Book Chapters

In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (“IoT”). The IoT is broadly defined as technology that allows everyday devices to (1) become “smart” and (2) communicate with other smart devices. Estimates indicate that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent …

Economic Theory, Divided Infringement And Enforcing Interactive Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

High tech companies – especially in the emerging areas of the Internet of Things, wearable devices, and personalized medicine – have found it difficult to enforce their patents on interactive technologies. This is especially true when multiple parties combine to perform all of the steps of a claimed method. This problem is referred to as joint or divided infringement, and some commentators advocate that “interactive” patents susceptible to divided infringement should not be enforced.

In contrast, this article argues that economic theory supports the enforcement of interactive patents. Previous papers have analyzed divided infringement problems from a doctrinal and policy …

Legislative Responses To Patent Assertion Entities, David O. Taylor

Faculty Journal Articles and Book Chapters

While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, David O. Taylor, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Patent Stewardship, Choice Of Law, And Weighing Competing Interests, David O. Taylor

Faculty Journal Articles and Book Chapters

Xuan-Thao Nguyen’s recent article, "In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law", is important for at least two potential reasons that Nguyen herself highlights. First, to the extent that the Federal Circuit’s decisions related to commercial law differ from state courts’ decisions related to commercial law, it might call into question the Federal Circuit’s competency with respect to commercial law. And, second, it certainly highlights something that practitioners might need to know to adapt their advice and strategies for reaching their clients’ desired ends. But Nguyen’s critique is important for a third reason. Assuming the …

New Forms Of Dialects Between Intellectual Property And Public Health: Pharmaceutical Patent-Related Investment Disputes, Valentina Vadi

The International Lawyer

No abstract provided.

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Mary Margaret Meg Penrose

SMU Science and Technology Law Review

No abstract provided.

Protecting American Innovators By Combating The Decline Of Patents Granted To Small Entities, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The new patent laws and recent economic trends indicate that there is a difficult time ahead for small entities. American entrepreneurs and small businesses have created several of the major technological innovations in the past forty years. However, statistics indicate that patents granted to small entities have declined. In the wake of this trend, the U.S. Patent system has undergone significant changes. Currently, the United States Patent and Trademark Office (“USPTO”) is in the process of implementing the policies and procedures outlined in its five-year strategic plan. Further, the Leahy-Smith America Invents Act (“AIA”), the largest patent reform law since …

Using Reasonable Royalties To Value Patented Technology, David O. Taylor

Faculty Journal Articles and Book Chapters

In the last several years, commentators have expressed serious concerns with the state of the law governing awards of reasonable royalties as damages in patent infringement cases. Given these concerns, the proper assessment of royalties has been a recent, frequent topic for debate among economists and legal scholars. At the same time, all three branches of the federal government have studied ways to improve the law governing reasonable royalties. In this Article, I reframe the ongoing debate by identifying and exploring two basic paradigms for calculating reasonable royalties: valuing patent rights and valuing patented technology. The traditional paradigm, valuing patent …

Formalism And Antiformalism In Patent Law Adjudication: Rules And Standards, David O. Taylor

Faculty Journal Articles and Book Chapters

The United States Court of Appeals for the Federal Circuit exists at least in part to achieve goals related to patent law that the Supreme Court singularly failed to achieve. Since the Federal Circuit’s inception just over thirty years ago, however, critics have shifted blame for problems with the patent system from the Supreme Court to the Federal Circuit. A common criticism that has gained strength is that the Federal Circuit engages in overly formalistic rule-based adjudication in patent cases. One aspect of this criticism is that the Federal Circuit too often creates rules to govern patent law. In this …

Patent Misjoinder, David O. Taylor

Faculty Journal Articles and Book Chapters

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation, contradicting two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure: the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties. Remarkably, the new statutory section does so despite the absence of any detailed scholarly …

China's Current Intellectual Property Plan, Policies & Practices, Hope Shimabuku, Mark Cohen

SMU Science and Technology Law Review

No abstract provided.

Chinese Intellectual Property Judges Panel, Zunxuen "Digger" Chen, Chen Yongshun, Zhang Yumin, Yi Jianxiong, Jennie Wu

SMU Science and Technology Law Review

No abstract provided.

China's Global Business Perspectives And Intellectual Property, Henry Haojin Wang, Federico Fraccaroli, Sheana Chen

SMU Science and Technology Law Review

No abstract provided.