Intellectual Property Law Commons^™

Copyrights In Higher Education: Motivating A Research Agenda, Jacob H. Rooksby

Law Faculty Publications

The Bayh–Dole Act of 1980 enabled American universities to engage in technology transfer. Thirty years of research has investigated the legislation’s effectiveness and derivative university practices, such as the establishment of technology transfer offices. Unfortunately, the technology transfer literature has focused primarily on patenting as the primary transfer vehicle for protecting intellectual property in universities, overlooking other forms of IP ownership, such as copyrights. Legal scholarship shows, however, that universities are increasingly using copyrights to protect their intellectual property and that the number of university-held copyrights exceeds patents. This paper examines the use of copyrights to protect and transfer university …

The Problem With Ptab's Power Over Section 101, Kristen Osenga

Law Faculty Publications

The doctrine of patent eligible subject matter under 35 U.S.C. § 101 is a “real mess.” Other apt terms to describe this doctrine, and the jurisprudence surrounding it, include “chaos” and “crisis.” Few question whether patent eligible subject matter is a problem; however, many do not realize how high the stakes are and how dire the consequences. The erosion of patent protection, in part due to the “chaos,” impacts the willingness of companies to invest in innovation. This is especially true in today’s most important technologies where innovations occur in the spaces most likely to be flagged as ineligible subject …

Ignorance Over Innovation: Why Misunderstanding Standard Setting Organizations Will Hinder Technological Progress, Kristen Osenga

Law Faculty Publications

On January 17, 2017, the Federal Trade Commission (FTC) sued Qualcomm Inc. in federal district court, alleging antitrust violations in the company's licensing of semiconductor chips used in cell phones and more. The suit alleges, in part, that Qualcomm refuses to license its patents that cover innovations incorporated in technology standards (standard-essential patents, or SEPs), in contradiction of the company's promise to license this intellectual property on fair, reasonable, and nondiscriminatory (FRAND) terms. According to the FTC, Qualcomm's behavior reduces competitors' ability to participate in the market, raises prices paid by consumers for products incorporating the standardized technology, and at …

What Happened To The Public’S Interest In Patent Law?, Kristen Jakobsen Osenga

Law Faculty Publications

Protecting intellectual property is the government’s most important tool to encourage innovation, as our country has understood since its founding. The Constitution provides for the grant of exclusive patent rights to “promote the progress of science and the useful arts.” Thomas Jefferson, who was initially skeptical of the value of patents, later remarked, “An Act of Congress authorising [sic] the issuing patents for new discoveries has given a spring to invention beyond my conception.” From the very first patent, issued in 1790, to the 10 millionth patent, issued in June 2018,4 the United States has seen remarkable amounts of invention …

Heterogeneity Among Patent Plaintiffs: An Empirical Analysis Of Patent Case Progression, Settlement, And Adjudication, Christopher A. Cotropia

Law Faculty Publications

This article empirically studies current claims that patent trolls, also known as patent assertion entities (PAEs) or non-practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patenteeplaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, …

Higher Education And The Dmca, James Gibson, Christopher A. Cotropia

Law Faculty Publications

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending takedown notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA takedown. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. …

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication, Stacey M. Lantagne

University of Richmond Law Review

No abstract provided.

Finding And Using Images, While Respecting Copyright, Roger V. Skalbeck

Law Faculty Publications

Text plays a central role in nearly every lawyer’s life. From cases to codes to contracts, words matter tremendously. At times, words alone are insufficient. A well-selected image can evoke emotion and attract attention. While there are literally millions of images online available for use without cost, a well sourced and properly referenced image should recognize and respect the creator’s intellectual property rights. Here are tips for finding and using images, while respecting copyright.

Co-Developing Drugs With Indigenous Communities: Lessons From Peruvian Law And The Ayahuasca Patent Dispute, Daniel S. Sem

Richmond Journal of Law & Technology

This paper will examine the issues surrounding the codevelopment of drugs derived from traditional medicines used by indigenous peoples in Amazonia, with a focus on Peru. In particular, this paper will explore what national, regional and international legal structures are in place to protect the interests of indigenous peoples, while at the same time providing medical benefit to the world. This issue is explored in the context of Peruvian, U.S., and international treaties – especially the TRIPS agreement, the Andean Community, sui generis protections, and the US-Peru Trade Promotion Agreement.

Physicalism And Patent Theory, Christopher A. Cotropia

Law Faculty Publications

United States patent law’s view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for “physicalism” was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to “working” the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the …

The Ftc’S Pae Study: Doing More Harm Than Good, Kristen Osenga

Law Faculty Publications

Recently, the Federal Trade Commission (FTC) released a report of its study of patent assertion entities (PAEs). The report was long anticipated and could have gone a long way to shining some light on patent licensing firms – who they are, how they operate, and so on. After all, patent licensing firms are misunderstood, partially because so much of their activity is not visible to the public. In theory, because the FTC has the power to obtain this invisible information, the study could have provided the data and insight needed to better understand these firms and improve the policy dialogue …

Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight

Law Student Publications

This comment's purpose is to explore whether the principles announced in Kirtsaeng should apply to the patent exhaustion doctrine. Part I begins by examining the history of patent exhaustion jurisprudence. It also introduces the competing theories international exhaustion and territorial exhaustion. Part II analyzes the effect of the recent Supreme Court decision in Kirtsaeng on the exhaustion doctrine in copyright. Part III contends that exhaustion doctrine polices the same practical problems in copyright as it does in patent law. Finally, the conclusion argues for an extension of the Kirtsaeng holding to the patent exhaustion doctrine.

Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight

University of Richmond Law Review

No abstract provided.

Why The Ftc Study On Paes Is Destined To Produce Incomplete And Inaccurate Results, Kristen Osenga

Law Faculty Publications

In the near future, the Federal Trade Commission is going to release the results of its study on patent assertion entities (PAEs). While it is very clear that we need additional information to understand the many complex business models that exist in the patent licensing world, the FTC’s study is unlikely to produce that information because of a few very critical flaws. What follows is an executive summary of my article, Sticks and Stones: How the FTC’s Name-Calling Misses the Complexity of Licensing-Based Business Models, published in the George Mason Law Review.

Patent ‘Reform’: What We Need First Is A Role Reversal, Kristen Osenga

Law Faculty Publications

I have often argued that we do not need so-called patent “reform.” But I’ve had a change of heart. We absolutely need patent reform, but not the kind proposed in the Innovation Act, H.R. 9, and the PATENT Act, S. 1137. To get the real kind of reform that will encourage a strong and vibrant innovation economy, we first need a role reversal. Let me explain.

Copyright In Higher Education: A Review Of Modern Scholarship, Jacob H. Rooksby

Law Faculty Publications

Of the four intellectual property regimes, copyright is the most central to the day-to-day functioning of higher education. Nearly every course of instruction involves the use of written, visual, intangible, and tangible materials, many if not most of which are subject to copyright protection. Students, faculty, and staff—essentially all the people who comprise higher education—produce and interact with copyrightable and copyrighted materials every day. Copyright relates directly to perhaps the most prominent of higher education’s goals: to educate students through teaching, and to produce scholarship and research that benefit mankind. All of these acts involve creating and using original works …

A Legal Perspective On University Technology Transfer, Jacob H. Rooksby

Law Faculty Publications

In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy …

A Fresh Look At Copyright On Campus, Jacob H. Rooksby

Law Faculty Publications

The role of copyright on the modern college and university campus is overdue for fresh examination. Copyright ownership issues and related con- tests over rights risk impeding higher education’s ability to serve as a cultural and knowledge commons, a specially constructed space where human and artifactual resources interact in ways that benefit society at large. At present, copyright concerns raised by trends involving student entrepreneurship, the digital humanities, and the digitization of special collections material housed in campus libraries threaten higher education’s potential to benefit society to the fullest.

This Article reviews developments in these three areas of higher education …

National Conference On Copyright Of State Legal Materials, Roger V. Skalbeck

Law Faculty Publications

A surge in legislation and the lawsuits on the copyright status of state legal materials raises concerns about principles of open government and free accessibility and use of these materials. On December 2, 2016, the American Association of Law Libraries (AALL) and Boston University School of Law are convening the National Conference of Copyright in State Legal Materials at BU Law. At this conference, all participants will be able to explore the issues surrounding state legal materials access through parallel goals of: Education, Inspiration, and Conversation.

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Commentary To The U.S. Copyright Office Regarding The Section 512 Study: Higher Education And The Dmca Safe Harbors, Christopher A. Cotropia, James Gibson

Law Faculty Publications

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending take-down notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA take-down. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

University of Richmond Law Review

No abstract provided.

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. The comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye.

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …

An Uneasy Balance: Personal Information And Crowdfunding Under The Jobs Act, Brice Kindred

Richmond Journal of Law & Technology

“Crowdfunding” is the raising of small amounts of money from many different sources for a particular purpose. Today, this usually takes place online.2 Crowdfunding has become a popular means of raising funds for a wide variety of projects, causes, and business ventures. Websites like Kickstarter, Indiegogo, and Crowdfunder allow people to create a profile for their project and solicit contributions from the general public in support.

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Richmond Journal of Law & Technology

The next great wave of Internet-enabled innovation has arrived, and it is poised to revolutionize the way humans interact with the world around them. This paper highlights some of the opportunities presented by the rise of the so-called Internet of Things (IoT) in general and wearable technology in particular and encourages policymakers to allow these technologies to develop in a relatively unabated fashion.

Cover Letter, Catherine Meade Gray

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its third issue of the Twenty-First Volume, our Annual Survey. This issue is published in conjunction with JOLT’s Symposium, “Who’s Looking At Your Mobile Device? Data Security, Personal Privacy, and Information Governance in the Wireless World.” As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. From the Journal’s inception in 1995, JOLT has strived to be a step ahead of these laws in an effort to help shape the …

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the Twenty-First Volume. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. From the Journal’s inception in 1995, JOLT has strived to be a step ahead of these laws in an effort to help shape the emerging legal landscape. Additionally, JOLT recognizes the practical benefit that many of its articles have on legal professionals and we publish articles with this goal in mind. The following articles …

Defining Domain: Higher Education's Battles For Cyberspace, Jacob H. Rooksby

Law Faculty Publications

Juliet famously mused, “What’s in a name? that which we call a rose / By any other word would smell as sweet.” The same cannot be said for Internet domain names. One’s inability to own a specific domain name has delayed product launches, caused companies to change names, and led to disputes with alleged cybersquatters. The utility of domain names has led to a robust secondary market of buyers and sellers, where domain names that encompass generic words, or are comprised of very few letters or numbers, often change hands for hundreds of thousands of dollars, or more. In short, …