Intellectual Property Law Commons^™

Defective Patent Deference, Tejas N. Narechania

Washington Law Review

The Supreme Court’s implicit deference to the Office of the Solicitor General in patent cases is well-documented: What the Solicitor General requests, the Solicitor General typically receives. But we know far less about how the Solicitor General arrives at these preferred policy positions, or why the Solicitor General comes to advocate for some outcomes over others. This is problematic. In practically every other corner of the administrative state, an agency earns substantial deference to its views only where robust procedural protections attend to the policymaking process, where the agency’s outcome reflects its substantive expertise, and where the agency may, through …

U.S.-U.K. Executive Agreement: Case Study Of Incidental Collection Of Data Under The Cloud Act, Eddie B. Kim

Washington Journal of Law, Technology & Arts

In March 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act, also known as the CLOUD Act, in order to expedite the process of cross-border data transfers for the purposes of criminal investigations. The U.S. government entered into its first Executive Agreement, the main tool to achieve the goals of the statute, with the United Kingdom in October 2019. While the CLOUD Act requires the U.S. Attorney General to consider whether the foreign government counterpart has a certain level of robust data privacy laws, the relevant laws of the United Kingdom have generally been questioned numerous times for …

Masthead

Washington Journal of Law, Technology & Arts

No abstract provided.

Table Of Contents

Washington Journal of Law, Technology & Arts

No abstract provided.

Harlem Shake Meets The Chevron Two Step: Net Neutrality Following Mozilla V. Fcc, Christopher R. Terry, Scott Memmel

Washington Journal of Law, Technology & Arts

In October 2019, the D.C. Circuit handed down its much-anticipated decision in Mozilla v. FCC, relying heavily on Chevron Deference and the Supreme Court’s 2005 Brand X decision. The per curiam opinion upheld large portions of the FCC’s 2018 Restoring Internet Freedom Order, but also undermined the FCC’s preemption of state law while also remanding issues related to public safety, pole attachments, and the Lifeline Program to the agency, assuring that the legal and policy battles over net neutrality will continue. This Article traces the history of the FCC’s efforts on net neutrality as it has moved in and out …

Public Performance? How Let's Plays And Livestreams May Be Escaping The Reach Of Traditional Copyright Law, Brianna K. Loder

Washington Journal of Law, Technology & Arts

Let’s Plays and livestreams are popular online videos of videogames being played. The Copyright Act protects videogames as audiovisual works, and therefore provides videogames with the exclusive right of public performance. The Supreme Court issued a ruling in ABC, Inc. v. Aereo, Inc. which clarified that performances in an online setting can be public even if the individuals receiving the content are doing so privately. However, the Court’s holding did not provide guidance on who is a performer, and therefore is liable for the infringing conduct, beyond the specific context by which Aereo transmitted content to its subscribers. Let’s Plays …

Pseudo-Gambling And Whaling: How Loot Boxes Pray On Vulnerable Populations And How To Curtail Future Predatory Behavior, Alexander Mann

Washington Journal of Law, Technology & Arts

The video game industry has blossomed from a niche hobby into a mainstream cultural industry, outpacing global box office sales in annual revenue. Yet the price of a video game has barely increased since the industry’s inception, and the current standard price point of sixty dollars has survived for over a decade. Competitive market forces drive companies to invest ever more time and money into creating increasingly complex software in order to remain on the cutting edge of graphics and design, while simultaneously increasing revenue. Thus, video game developers and publishers have developed a multitude of alternative money- making services …

Inclusive Patents For Open Innovation, Toshiko Takenaka

Articles

The post-internet era has greatly affected commercial firms' innovation processes. The complexity and cumulative nature of emerging technologies under the post-internet era has made commercial firms reevaluate their innovation processes and has increased the role of individual innovators. Firms dealing with emerging technologies cannot make products without infringing on patents held by others, as their products are covered by numerous overlapping patents. Many of these firms work with individual innovators and embrace the open-source philosophy that ensures open access to technologies. These firms can no longer use patents for excluding others without risking infringement counterclaims, leading to the development of …

Lending Innovations, Xuan-Thao Nguyen

Articles

This article is the first to identify the disruption in tech lending by outlier commercial banks and to theorize the ways in which IP Venture Banking is fueling innovation both nationwide and globally. This disruptive model is a new beginning for both banks and startups on the path of borrowing and lending for innovation.

Part I identifies the four outlier banks-from among the six thousand total banks-that dare to venture into the innovation-intensive sectors for lending purposes and dominate the business model of lending for innovation. Based on extensive efforts to extract data from bank lending activities, Part I reveals …

Past, Present, And Future Of Intellectual Property In Space: Old Answers To New Questions, Rosario Avveduto

Washington International Law Journal

This comment critically analyzes international space law in the context of intellectual property. The issues explored, current and future, are at the crossroads of the international space legal framework and U.S. intellectual property law. The first stage of the analysis includes a brief history of space law, introducing the U.N. treaties on space activities and taking a hard look at the founding principles they enshrine. An analytical overview of the International Space Station Agreement follows, introducing the present application of space law to issues of intellectual property. This overview further considers the fundamental principles of U.S. intellectual property, especially patent …

No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum

Washington Law Review

Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the …

Copyright's Market Gibberish, Andrew Gilden

Washington Law Review

There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based …

Global Rate Setting: A Solution For Standards-Essential Patents?, Jorge L. Contreras

Washington Law Review

The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable, and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out arise with increasing frequency, spurring competition authorities to investigate and intervene in private standardsetting. And litigation regarding compliance with FRAND commitments has led courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different methodologies and doctrinal …

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

Washington Law Review

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation. To resolve this puzzle, we offer a novel theory of patent rights—which we …

Who Decides Fair Use–Judge Or Jury?, Ned Snow

Washington Law Review

For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent. Oracle raises a fundamental question in jurisprudence: Who should decide an issue–judge …

Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz

Washington Law Review

Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable. In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League …

Attacking Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

For Canadian Love Of Trader Joe’S: First Sale Doctrine, Reputational Harm And Lanham Act’S Extraterritoriality, Xuan-Thao Nguyen

Articles

No abstract provided.

The Supreme People's Court Annual Report On Intellectual Property Cases (2017) (China), Ida L. Knox, Ruixiang (Ray) Xu, Weichen Zhu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, trade secrets, copyright, and unfair competition cases. This 2017 Annual Report examines 42 cases and includes general guidelines for legal application. This summary reflects the Supreme People’s Court’s thoughts and approaches for ruling on new and complex IP and competition cases.

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

Articles

This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for consumers. In …

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

Articles

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey

Washington Law Review

In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving …

Remarks On The Problem Of Scope In Ip, Mark P. Mckenna

Washington Journal of Law, Technology & Arts

As I contemplated the focus of this conference, issues about the nature of the rights that are the subject of a deal stood out to me. A good deal of my recent work has focused on challenges in determining the scope of IP rights. And since those rights are the inputs to various kinds of transactions—or, perhaps even more importantly, ability to assess the scope of a right affects whether a transaction is needed—I’m going to focus here on the relationship between the scope of IP rights and potential IP transactions. [These remarks were given as the keynote talk at …

Visual Methaphor And Trademark Distinctiveness, Dustin Marlan

Washington Law Review

Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy. This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image …

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski

Washington Law Review

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its oftenhomogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, …

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Washington Law Review

Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

Fair Use, Fair Play: Video Game Performances And "Let's Plays" As Transformative Use, Dan Hagen

Washington Journal of Law, Technology & Arts

With the advent of social video upload sites like YouTube, what constitutes fair use has become a hotly debated and often litigated subject. Major content rights holders in the movie and music industry assert ownership rights of content on video upload platforms, and the application of the fair use doctrine to such content is largely unclear. Amid these disputes over what constitutes fair use, new genres of digital content have arrived in the form of “Let’s Play” videos and other related media. In particular, “Let’s Plays”—videos in which prominent gamers play video games for the entertainment of others—are big business …

Approximating A Federal Patent District Court After Tc Heartland, Timothy T. Hsieh

Washington Journal of Law, Technology & Arts

This article presents a patent litigation framework for other federal district courts to follow, using the example of the U.S. District Court for the Eastern District of Texas after TC Heartland. This article also provides an overview of the TC Heartland U.S. Supreme Court case and the In Re Cray Federal Circuit opinion, as well as how those two cases have impacted patent litigation in various district courts across the country, most notably in the District of Delaware. All district courts should learn various lessons from the District Court for the Eastern District of Texas and should model their …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.

Patent Aversion: An Empirical Study Of Patents Collateral In Bank Lending, Xuan-Thao Nguyen, Erik Hille

Articles

The most valuable assets of many companies today are patents. If patents are valuable, why do banks operating across the United States refuse to lend against patents in commercial lending to reduce their risks? Lending is the primary function of banks. Yet banks have a strong aversion to accept patents as collateral, rendering the vast number of patents as idle assets. This empirical study is the first to identify the patent aversion problem as contrary to the frequent headlines of how valuable patents are to the economy. By carefully extracting relevant patent and security interest filings data and examining the …