Intellectual Property Law Commons^™

Diminishing Uncertainty In Software Patents: After The Supreme Court Denied Certiorari For Synopsys Inc. V. Mentor Graphics Corp., Kayla Hope Barnes

Journal of Intellectual Property Law

There is currently a gap in United States' patent law that is threatening American innovation. The lack of predictability of the patent eligibility of new computer software has left many to wonder what the future holds for the industry. This idea is illustrated by the Global Intellectual Property Center's most recent patent protection rankings where, for the first time, the Global Intellectual Property Center ranked the United States tenth in patent protection tied with Hungary. To put this in perspective, the Center ranked the United States as the best country for patents in 2016. The 2017 report cites "uncertainty" in …

Protecting Blockchain Investments In A Patent Troll World, Kelli Spearman

Journal of Intellectual Property Law

When blockchain technology was first introduced via the now-infamous Bitcoin in 2008, it was almost immediately recognized by the tech industry as being even more valuable (and certainly less volatile) than the cryptocurrency it embodied. The publicly distributed ledger known as the blockchain has created a frenzy that is continuing to grow as industries explore future adaptations of the technology. Following this explosion of cross-industry innovation, intellectual property issues naturally follow as early adaptors seek to capture the value of pioneering new blockchain technology. The rising popularity of the blockchain has created an intellectual property gold-rush as firms hoping to …

The Shifting Landscape Of Medicine: Patents Of Personalized Biologic Treatments And Their Potential Conflicts With Right-To-Try Laws, Johnson T. Laney

Journal of Intellectual Property Law

The United States has gone back and forth over whether its citizens have a moral right to access potentially life sustaining or lifesaving treatment when they are terminally ill. Currently, forty-one states and the US Senate have passed "right to try" laws that permit terminally ill patients to have access to experimental treatments that have not yet received FDA approval. The United States has had a difficult time determining whether a patient has the right to refuse life-sustaining or lifesaving treatment because of fear that the patient is suicidal. The Supreme Court has addressed this problem and determined that the …

Hold Up: Digital Sampling, Copyright, Infringement, And Artist Credit Through The Lens Of Beyonce's "Lemonade", Spenser Clark

Journal of Intellectual Property Law

No abstract provided.

Will You Have To Pay For The O.C.G.A.?: Copyrighting The Official Code Of Georgia Annotated, Elizabeth Holland

Journal of Intellectual Property Law

In the 1970s, the Georgia General Assembly set out to perfect the organization of the laws of the state. The State worked with a publishing company to not only codify the statutory portions but also create additional annotations to explain the application of the law in practice. When enacting the code, the State merged the statutory portion with the annotations to create the Official Code of Georgia Annotated (O.C.G.A.). Georgia sought to retain the copyright in the O.C.G.A.

Years later, Carl Malamud and Public.Resource.Org, Inc. (Public Resource) challenged this construction. He alleged merging the statutory code with the annotated version …

Trademarks & The First Amendment After Matal V. Tam, Gary Myers

Journal of Intellectual Property Law

The United States Supreme Court's unanimous ruling in Matal v. Tam is a landmark decision regarding the intersection between free speech and trademark law. Addressing whether trademarks can legitimately be barred from federal trademark protection under the Lanham Act based solely on their possible disparaging content, the litigation involving an Asian-American band that sought to register the name, "The Slants," brought this important interplay into stark relief. Writing in bold strokes, Justice Alito's opinion holds that the Lanham Act's prohibition on disparaging marks, 15 U.S.C. 51052(a), violates the Free Speech Clause of the First Amendment. "It offends a bedrock First …

Monetizing Tribal And State Sovereign Immunity In Patent Law: An Attempt To Neutralize The Patent Death Squad, Sean P. Belding

Journal of Intellectual Property Law

On September 8, 2017, Allergan announced the assignment of six of its patents to the St. Regis Mohawk Tribe. These six patents protected Allergan 's exclusivity over the blockbuster drug RESTASIS and were at risk of invalidity due to an inter partes review proceeding. In return for substantial monetary consideration, the Mohawk Tribe granted Allergan an exclusive license back and agreed to invoke its tribal sovereign immunity in an attempt to obtain a dismissal of the inter partes review proceedings against the RESTASIS patents. Allergan's strategy is an attempt to monetize sovereign immunity that raises significant concerns in patent law …

Table Of Contents

Journal of Intellectual Property Law

No abstract provided.

Electronic Publication Of The Law: Copyright And Contract Terms Of Use, Leslie Street

Continuing Legal Education Presentations

Discusses the electronic publication of laws, including sites where laws are published, their copyright and terms of use.

Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick

Scholarly Works

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights — which …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

Scholarly Works

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley

Scholarly Works

This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

Scholarly Works

An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

Scholarly Works

This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …

Patent Inequality, Greg Day, W. Michael Schuster

Scholarly Works

Using an original dataset of over 1,000,000 patents and empirical methods, we find that the patent system perpetuates inequalities between powerful and upstart firms. When faced with growing numbers of patents in a field, upstart inventors reduce research and development expenditures, while those already holding many patents increase their innovation efforts. This phenomenon affords entrenched firms disproportionate opportunities to innovate as well as utilize the resulting patents to create barriers to entry (e.g., licensing costs or potential litigation).

A hallmark of this type of behavior is securing large patent holdings to create competitive advantages associated with the size of the …

Essentials Of A Publication Agreement, Stephen Wolfson, Mariann Burright

Presentations

This session will focus on authors' rights and publishing contracts. When academic publishers agree to publish academic works, they require the authors to sign agreements before doing so. In the past, these “agreements” – contracts, by another name – often have contained provisions that primarily benefit the publishers, including assigning intellectual property rights in the works to the publishers and limiting authors’ abilities to use their works after transferring their rights. Faculty authors often ask librarians for their guidance on how to read and negotiate publication agreements. As such, this session will discuss common provisions found in publishing contracts to …

Wearables And Where They Stick: Finding A Place For Tech Tattoos In The Ip Framework, Emily A. Mccutcheon

Journal of Intellectual Property Law

No abstract provided.

Freebooting On Facebook -- Should The Social Media Giant Face Liability?, Nicholas J. Tait

Journal of Intellectual Property Law

No abstract provided.

Watch What You *Bleeping* Want: Interpretation Of Statutes Dealing With Advancing Technology In Light Of The Ninth Circuit Case Of "Disney Enterprises, Inc. V. Vidangel, Inc.", Thomas B. Norton

Journal of Intellectual Property Law

No abstract provided.

Tightening The Gilstrap: How "Tc Heartland" Limited The Pharmaceutical Industry When It Reined In The Federal Circuit, Amanda Walton Newton

Journal of Intellectual Property Law

No abstract provided.

The Curious Case Of Cady Noland And The Disappearing Cabin, Amanda Hoefer

Journal of Intellectual Property Law

No abstract provided.

Balancing The Competing Functions Of Patent Post-Grant Proceedings, Michael Xun Liu

Journal of Intellectual Property Law

Since the 1980s, the United States Patent and Trademark Office has amended or revoked patents through post-grant proceedings. These are quasi-judicial proceedings that are often used to resolve patent disputes. But aside from adjudicating private disputes, post-grant proceedings also aim to protect the public against invalid patents, create more certainty in patent rights, and bolster confidence in the patent system. These functions are often described as “examinational” because they rely on the PTO’s ability to reexamine the validity of issued patents.

This Article explores the extent to which post-grant proceedings under the America Invents Act (AIA) perform examinational functions. Although …

Historical Perspectives & Reflections On "Matal V. Tam" And The Future Of Offensive Trademarks, Russ Versteeg

Journal of Intellectual Property Law

No abstract provided.

From Ip Goals To 3d Holes: Does Intellectual Property Law Provide A Map Or Gap In The Era Of 3d Printing?, Autumn Smith

Journal of Intellectual Property Law

No abstract provided.

Use It Or Lose It: The Sixth Circuit's New Approach To Evaluating Likelihood To Cause Consumer Confusion In Trademark Disputes, Stuart F. Sumner

Journal of Intellectual Property Law

No abstract provided.

Location Unaware: Developing A Standard Of Secondary Liability For Location-Aware Technology Developers, Joseph Phillip Sklar

Journal of Intellectual Property Law

No abstract provided.

The Ftc And Modern Common Carrier Regulation In The Telecom Context, Cody Lee Shubert

Journal of Intellectual Property Law

No abstract provided.

Disposition Of Digital Assets In Georgia, Clint Alain Guillebeau

Journal of Intellectual Property Law

No abstract provided.

Standoff Between The Trademark Trial And Appeal Board (Ttab) And The Federal Courts: What "Houndstooth Mafia" Means For Judicial Authority Over Administrative Agencies, Matthew S. Chandler

Journal of Intellectual Property Law

No abstract provided.

What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright

Presentations

Now that you know the foundations of enforceable contracts, and want to have more familiarity with some nuts and bolts of contract language to become a better negotiator for your institutions, you will want to take this second webinar.
Participants will learn:
• What are the basic provisions or clauses of a contract?
• What do these provisions obligate my institution to do?
• What do these provisions obligate the other party to do?
• What rights does my institution have if the other party breaks its obligations?