Intellectual Property Law Commons^™

Criminal Trade Secret Theft Cases Against Judgment Proof Defendants In Texas And California, Michelle Evans, Kurt M. Saunders

William & Mary Business Law Review

Trade secret theft is a costly and ongoing risk to many businesses. As the two most populous states, California and Texas are home to numerous businesses that own trade secrets. Although civil remedies afford one source of relief when a trade secret has been stolen or disclosed, collecting on a judgment may be impossible due to the Homestead laws in both states, which effectively render the defendants judgment proof. In such cases, another alternative is to consider a criminal prosecution under the Federal Economic Espionage Act or state law. The same misconduct that results in civil liability can also violate …

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Library Staff Publications

No abstract provided.

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

William & Mary Law Review Online

As we enter the second year of the DTSA, this Article presents a snapshot of developments to assess whether there appears to be any significant doctrinal changes afoot in trade secret litigation— including civil and/or criminal—during the past year. Professors David Levine and Christopher Seaman provided some empirical data and quantitative analysis of the case filings during the first year of litigation under the DTSA (from May 2016 to May 2017). This Article complements their excellent work by taking a qualitative look at some of the substantive rulings from the following year. My assessment based on this limited sampling is …

Reasonable Appropriation And Reader Response, Laura A. Heymann

Faculty Publications

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to …

Who Owns (What We Characterize As) The News?, Laura A. Heymann

Faculty Publications

Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place—and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history—the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the …

Copyright And The Single Work, Laura A. Heymann

Popular Media

No abstract provided.

Music Streaming: Where Interactive & Non-Interactive Services Fit Under The Homestyle Exemption, Taylor Mcgraw

William & Mary Business Law Review

When business owners play music in their establishments, they have either appropriately purchased a public performance license or they are playing the musical composition without permission from the rights holder, ultimately violating the Copyright Act. Business owners commonly use what is known as the Homestyle Exemption, giving them the ability to forego purchasing a license, assuming they can meet the exemption’s requirements. Before the era of music streaming, terrestrial radio was the popular way to consume music, which is reflected in the Homestyle Exemption’s requirement that the music be radio broadcast. Today’s business owners are taking advantage of other music …

Patent Prior Art And Possession, Timothy R. Holbrook

William & Mary Law Review

Prior art in patent law defines the set of materials that the United States Patent and Trademark Office (USPTO) and courts use to determine whether the invention claimed in a patent is new and nonobvious. One would think that, as a central, crucial component of patent law, prior art would be thoroughly theorized and doctrinally coherent. Nothing could be further from the truth. The prior art provisions represent an ad hoc codification of various policies and doctrines that arose in the courts.

This Article provides coherency to this morass. It posits a prior art system that draws upon property law’s …

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

“Either Secrecy, Or Legal Monopoly”: Why We Should Choose Fracking Patents, Sarah Spencer

William & Mary Environmental Law and Policy Review

No abstract provided.

Pornography And Gender Inequality—Using Copyright Law As A Step Forward, Kayla Louis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Small Can Be Inventive: The Patentability Of Nanoscale Reproductions Of Macroscale Machines, Christopher Anderson

William & Mary Business Law Review

Nanotechnology is a thriving new field of research. If even a fraction of the excitement surrounding the field proves to be true, there will be profound benefits in many aspects of our lives. Crucial to its development, however, will be the treatment of nanotechnology with respect to patents. This field has the unique potential to replicate existing machines and devices at a billionth of their size. In light of rulings that “mere scaling” of prior inventions does not create a patentable invention, problems with patentability might arise. This Note tackles this issue, considering the patentability requirements of novelty and non-obviousness, …

Creative Communities And Intellectual Property Law, Laura A. Heymann

Popular Media

No abstract provided.

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

William & Mary Law Review

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Pleading Patent Infringement: Res Ipsa Loquitur As A Guide, Andrew L. Milam

William & Mary Law Review

No abstract provided.

Impression Products, Inc. V. Lexmark Inc.: Will International Patent Exhaustion Bring Free Trade In Patented Goods?, Sarah R. Wasserman Rajec

Popular Media

No abstract provided.

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Let’S Stop Playing Games: A Consistent Test For Unlicensed Trademark Use And The Right Of Publicity In Video Games, Arlen Papazian

William & Mary Business Law Review

Courts cannot agree on how to handle cases centered on unlicensed use of a trademark or celebrity’s likeness in video games. Two tests have arisen as the primary standards by which to judge such cases: the Rogers test and the transformative-use test. However, in an area of law muddled by multiple standards and the inconsistent application of those standards to a relatively new medium, neither test can adequately balance mark holder rights with the constitutional rights of video game developers. In this turmoil, large video game companies take advantage of marks and licenses knowing the rightful holders will have little …

Indefiniteness As An Invalidity Case, Janet M. Smith

William & Mary Law Review

No abstract provided.

Copyright Law’S Origin Stories, Laura A. Heymann

Popular Media

No abstract provided.

The Intellectual Property Hostage In Trade Retaliation, Sarah R. Wasserman Rajec

Faculty Publications

Intellectual property law has become bound up in a debate about appropriate remedies for violations of the World Trade Organization Agreement. As an alternative to traditional countermeasures that consist of retaliation under the violated agreement, the World Trade Organization ("WTO ") contemplates that violations of one of its covered agreements may be remedied through "cross-retaliation, " or retaliation under another agreement. One form of cross-retaliation has garnered interest in recent years: the threat to suspend intellectual property rights in response to unrelated trade violations

Cross-retaliation through intellectual property rights suspension is theoretically appealing for its potential to avoid problems inherent …

Perverse Innovation, Dan L. Burk

William & Mary Law Review

An inescapable feature of regulation is the existence of loopholes: activities that formally comply with the text of regulation, but which in practice avoid the desired outcome of the regulation. Considerable ingenuity may be devoted to exploiting regulatory loopholes. Where technological regulation is at issue, such ingenuity may often be devoted to developing new technology that avoids the regulation; such innovation may be termed “perverse” because it is directed to avoiding the regulation that prompted it. Nonetheless, in this Article I argue that such regulatory circumvention may result in socially beneficial innovation. Drawing on insights from innovation policy in the …

Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Productivity And Diversity In Research And Agriculture: Improving The Ipr Landscape For Food Security, A. Max Jarvie

William & Mary Environmental Law and Policy Review

While food security has long been a national or regional burden, the advent of international instruments governing intellectual property rights over conventionally bred plant varieties and genetically modified plants has made the management of food security a global concern. Current intellectual property regimes do not provide clear support for innovations in crop productivity or biodiversity, both of which are implicated in the long term stability of food supply. This Paper examines the intellectual property regimes governing agricultural food stocks with respect to the level of support they provide for three key research programs in the development of crop seeds and …

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

Harnessing Human Potential: Induced Pluripotent Stem Cell Patentability Under The Lens Of Myriad, Derek Van Den Abeelen

William & Mary Business Law Review

After the Supreme Court's decision in Ass'n for Molecular Pathology v. Myriad Genetic's, previously patentable materials may now be rejected as unpatentable subject matter, specifically because they cover natural products. This presents a problem for businesses performing adult stem cell research and development, because stem cells exist in nature but pluripotency in adult stem cells does not. The United States Patent and Trademark Office (USPTO) and federal courts must recognize that these stem cells are still patentable because there is human intervention that creates a product that could not exist in nature on its own. Neither the USPTO nor any …

Mass Digitization Of Cultural Heritage: Why Copyright Obstacles Must Be Overcome

Stanley H. Mervis Lecture

No abstract provided.