Intellectual Property Law Commons^™

Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, Ian Ayres, Paul Klemperer

Michigan Law Review

Uncertainty and delay in patent litigation may have unforeseen virtues. The combination of these oft-criticized characteristics might induce a limited amount of infringement that enhances social welfare without reducing (or without substantially reducing) the profitability of the patentee. Patent infringement is generally viewed as socially inefficient because infringement reduces the patentee's ex ante incentive to innovate. Limited amounts of infringement combined with increased patent duration, however, can substantially reduce the distortionary ex post effects of supracompetitive pricing without reducing the patentee's ex ante incentives to innovate. Indeed, this Article derives a legal regime that preserves the incentive to innovate by …

Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen

Michigan Law Review

Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …

Profits In Cyberspace: Should Newspaper And Magazine Publishers Pay Freelance Writers For Digital Content?, Rod Dixon Esq.

Michigan Telecommunications & Technology Law Review

It is remarkable how fast recent trends have driven an increasing number of publishers of magazines, newspapers, and other similar works to port the print version of their works to digital and electronic format in the form of online computer databases and multimedia CDROM technologies. Online computer databases and CD-ROM media can be exceptionally profitable ventures for publishers who convert a preexisting print work into a digital product. However, publishers' profits from digital media may be impaired if there is a question as to whether the publisher has satisfactorily secured the copyright to the material making up the digital media. …

What State Am I In?: Common Law Trademarks On The Internet , Brian L. Berlandi

Michigan Telecommunications & Technology Law Review

This essay explores the interaction between common law trademarks and the Internet--a relationship that has yet to be scrutinized by the intellectual property and Internet communities. More specifically, it strains to identify a common law mark's territorial zone of protection with respect to the Internet. This is an ambitious endeavor from the start, for there is no case law or published academic material available or directly on-point. As a result, this essay will not be a critique of judicial precedent or academic opinion. Instead, it offers a premonition of future case law and a foreshadowing of legal scenarios that might …

Focus On Faculty - Rebecca S. Eisenberg, Rebecca S. Eisenberg

Other Publications

As a teenager, I had a passion for studying foreign languages. I loved immersing myself in an unfamiliar idiom, struggling to make sense of another system for parsing words and sentences to describe experiences and observations. I reveled in subtle differences in the meaning of words that were sometimes, but not always, equivalents in translation. Most intriguing of all were the occasional insights I gained into the limitations of my own language when I recognized that a foreign locution simply has no English equivalent.

Einstein's Hair, Jonathan A. Franklin

Michigan Journal of International Law

Review of From Privacy Toward a New Intelletual Property Right in Persona: The Right of Publicity (United States) and Portrait Law (Netherlands) Balanced with Freedom of Speech and Free Trade Principles by Julius C.S. Pinckaers

Choosing Law In Cyberspace: Copyright Conflicts On Global Networks, Andreas P. Reindl

Michigan Journal of International Law

This article contends that in the digital era, the current system of national, territorially limited copyright laws requires a flexible copyright choice of law regime. To promote certainty and predictability in the choosing of the copyright law applicable to acts of exploitation, choice of law rules should use the location of a user as the principal factor to determine the applicable copyright law. In appropriate circumstances, the choice of law rules should allow the application of a multitude of national copyright laws to single acts of use on digital networks. This article also argues that a broad application of flexible …

Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller

Articles

Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse when governments allow too many people to use a scarce resource, it misses the possibility of underuse when governments give too many people rights to exclude others. Privatization can solve one tragedy, but cause another.

Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray

Other Publications

MS. PERLMUTTER: We have heard today about copyright in two different regions of the world, in Central and Eastern Europe' and in China. In recent years there has been an increasing convergence in the substance of national laws in different regions of the world. One of the major factors has been the TRIPs Agreement? I will focus on the current efforts toward implementing the TRIPs Agreement, and this will be a procedure-oriented talk.

Genomic Patents And Product Development Incentives, Rebecca S. Eisenberg

Book Chapters

Patents on human genetic information have been controversial among different groups for different reasons. The purpose of a patent system is to motivate the commercial development of new technologies; it is thus unsurprising that those who have fundamental misgivings about commercial biotechnology would oppose gene patents. More intriguing is the controversy over gene patenting among those who welcome the commercial development of biotechnology products by private firms. While many proponents of commercial biotechnology assert that gene patents are essential to motivate product development, some have expressed more nuanced views, endorsing patents under some circumstances and condemning them as unnecessary or …

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch

Michigan Law Review

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization ("IS0") to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer ("OEM") for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions …

Copyright Law And Electronic Access To Information, Jessica D. Litman

Articles

At the same time as we have been discovering the Internet’s enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet’s high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries’ use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright. The …

Intellectual Property Issues In Genomics, Rebecca S. Eisenberg

Articles

Controversy over intellectual property rights in the results of large-scale cDNA sequencing raises intriguing questions about the roles of the public and private sectors in genomics research, and about who stands to benefit (and who stands to lose) from the private appropriation of genomic information. While the US Patent and Trademark Office has rejected patent applications on cDNA fragments of unknown function from the National Institutes of Health, private firms have pursued three distinct strategies for exploiting unpatented cDNA sequence information: exclusive licensing, non-exclusive licensing and dedication to the public domain.

Escaping The World Of I Know It When I See It: A New Test For Software Patent Ability, Brooke Schumm Iii

Michigan Telecommunications & Technology Law Review

The major thesis presented in this article is a focused standard of software patentability, in particular for pure computational methods or algorithms directed to the manipulation of numbers operating on a computer. The general philosophy is to compel inventors to narrow their claims to an algorithm expressed in terms of its utility and then to require that the particular utility or functionality be expressed in the claim as a limit on the claim, thus precluding the patent monopoly from being overbroad. As a corollary, any person is free to use or perhaps to patent the algorithm for a different utility …

Information Wants To Be Free, But The Packaging Is Going To Cost You, Gregory A. Stobbs

Michigan Telecommunications & Technology Law Review

The question is this: where do we draw the line between private ownership and the public domain? It is not a question of choosing between copyright and patent, of choosing between hardware and software, or of choosing between implementation and algorithm. It is a more fundamental question that reaches back to ancient human values and transcends our current fixation on computers and software. It helps to put things in perspective. When debating where we and the law are headed (as we are now), it helps to know where we have been. In this regard, do not assume that software patents …

Software Developers Want Changes In Patent And Copyright Law, David A. Burton

Michigan Telecommunications & Technology Law Review

Most software developers do not oppose all software copyrights. There is broad support for basic copyright protection of computer programs which prohibits directly copying computer programs without the author's permission. Nearly all commercial software is copyrighted, and most programmers agree that such protection is necessary in order for software development to be profitable. However, software patents and "look and feel" copyrights go well beyond this to prohibit other programmers from independently writing even programs that are similar to the protected program. Such constraints are strongly resented by many in the software development community who long for the good old days …

Sofware Patents And The Information Economy, Michael Perelman

Michigan Telecommunications & Technology Law Review

Modern economists universally acknowledge that information is an essential component of productivity. Moreover, as they begin to focus more and more on the nature of information, their conception of information widens considerably.

Comments In Response To The Patent And Trademark Office's Proposed Examination Guidelines For Computer-Implemented Inventions, Robert R. Sachs

Michigan Telecommunications & Technology Law Review

The Guidelines reflect a policy decision that computer-implemented inventions require both hardware and software elements. This policy decision and definition present several important issues. First, do the Guidelines accurately reflect and accommodate the practices of the software industry and software engineers? Second, do the Guidelines accurately reflect the current case law?

Software Patents--Just Make A Good Thing Better, David R. Syrowik

Michigan Telecommunications & Technology Law Review

Some have stated that software is somehow "different" from other technologies and must be treated differently. Others have gone so far as to advocate the abolition of patents for software-related technologies. I disagree with both propositions. I believe a heavy burden rests on those who advocate that a particular field of technology should be exempted from the patent system absent a statutory prohibition. Software-related technology should be treated under the U.S. patent laws as any other technology would be treated. Otherwise, investment in the software industry will be negatively impacted. The current patent system is vital to the protection of …

Rhetoric And Reality In Copyright Law, Stewart E. Sterk

Michigan Law Review

My first objective in this article is to explore the gulf between copyright rhetoric and copyright reality. After examining copyright rhetoric, the article demonstrates how neither the need to generate creative activity nor the desire to reward deserving authors provides a plausible justification for current copyright doctrine.

Why, then, does copyright doctrine continue to expand? The concluding section suggests some answers. Interest-group politics provides an obvious answer and one well-substantiated by the history of copyright legislation. But the story does not end with interest-group politics. Instead, I suggest that the nation's elite, including its lawmakers, has a stake in believing …

The Copyright Act Of 1976 And Prejudgment Interest, Jon M. Powers

Michigan Law Review

This Note argues that prejudgment interest should be presumptively available on damages-plus-profits awards under section 504(b) but should not be available for statutory damages under section 504(c). Part I argues that Supreme Court precedent suggests that the explicit reference to interest found in the Patent Act does not prevent courts from awarding prejudgment interest under the 1976 Copyright Act. Part II asserts that the 1976 Copyright Act's silence regarding prejudgment interest does not represent a congressional choice to exclude this remedy and that, in the face of this silence, the underlying purposes of section 504 should determine the propriety of …

Patents: Help Or Hindrance To Technology Transfer?, Rebecca S. Eisenberg

Book Chapters

Intellectual property is a broad heading used to refer to a wide variety of rights associated with inventions, discoveries, writings, artistic works, product designs, and designations of the source of goods and services. Patents and trade secrets are the most important of these sorts of intellectual properties in the field of biotechnology. One aspect of intellectual property that distinguishes it sharply from other forms of property-and for some people makes it harder to justify-is that intellectual properties may be possessed and used by many people simultaneously. This is not so for tangible property. If someone borrows my car, I cannot …

Theft By Territorialism: A Case For Revising Trips To Protect Trademarks From National Market Foreclosure, Beth Fulkerson

Michigan Journal of International Law

This Note will argue that the "well-known mark" standard of the Paris Convention, which is also adopted by the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS), the North American Free Trade Agreement (NAFTA), and the European Community (EC), is an artifact of an era when markets were circumscribed by national borders and granting a monopoly on a trademark in one country on the basis of its use in another was unreasonable because the likelihood of confusion was minimal. Today, however, the trademark originator's intent to expand beyond its original market should be presumed. …

Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza

Michigan Journal of International Law

This article recasts the debates over access to, and control over, genetic and biological knowledge and resources in terms of the appropriation of indigenous and local communities' knowledge and resources. It first discusses recent examples of appropriation as currently conducted by global biotechnology, pharmaceutical, and agribusiness corporations and their associates in Northern universities, seed and gene banks, and research centers. Second, it describes and exposes the mechanisms of appropriation by focusing on the limited and culturally determined definitions of what is "wild" as opposed to "cultivated," what is "knowledge" and who can possess it, and what are "innovations" and "inventions." …

Intellectual Property At The Public-Private Divide: The Case Of Large-Scale Cdna Sequencing, Rebecca S. Eisenberg

Articles

The Human Genome Project provides fertile ground for studying the role of intellectual property at the wavering boundary between public and private research science. It involves a major commitment of both public and private research funds in an area that is of significant interest both to research scientists working in university and government laboratories and to commercial firms. It thus provides a wealth of new scientific discoveries that are simultaneously potential candidates for commercial development and inputs into further research. Its obvious implications for human health raise the stakes of getting the balance between private property and public access right, …

Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg

Articles

This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of outlays …

Intellectual Property And The Costs Of Commercial Exchange: A Review Essay, Robert P. Merges

Michigan Law Review

A Review of The Commercial Law of Intellectual Property by Peter A. Alces and Harold F. See

Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson

Michigan Journal of International Law

In Section I of this article, I will describe the events that led to the current controversy. In Section II, I will discuss whether the content of historic documents can be classified as cultural property. In Section III, I will consider whether control of the content of these documents interferes with intellectual freedom. In Section IV, I will discuss the intellectual property arguments raised by owners and interpreters of the Scrolls. Finally, in Section V, I will propose standards for access to, and preservation of, historic documents.

Authors' Moral Rights In Non-European Nations: International Agreements, Economics, Mannu Bhandari, And The Dead Sea Scrolls, Jeffrey M. Dine

Michigan Journal of International Law

This note undertakes to examine authors' moral rights in non-European countries. Section I will provide a brief comparative description of moral rights. Section II will discuss the treatment of moral rights in the Berne convention and the TRIPS agreement. Section III will then examine moral rights law in India and Israel, and two important cases from these nations, Mannu Bhandari v. Kala Vikas Pictures from India, and Qimron v. Shanks, from Israel. Mannu Bhandari deals with an author's moral right in the film adaptation of her work, Qimron with the moral rights of a scholar in the reconstruction of one …

Reply To Comments On The Patentability Of Certain Inventions Associated With The Identification Of Partial Cdna Sequences, Rebecca S. Eisenberg, Robert P. Merges

Articles

A brief reply is in order to clarify our position on the patenting of research tools. We stand by the statement that "there are reasons to be wary of patents on research tools," but that statement should not be understood as a broad condemnation of patents on research tools in all contexts. Indeed, immediately after the cited language our opinion letter acknowledges that withholding patent protection from research tools could undermine private incentives to develop research tools and to make them available to investigators or lead to greater reliance on trade secrecy. Unlike the government, which purports to pursue patent …