Intellectual Property Law Commons^™

Piracy, Prejudice, And Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S.-China Intellectual Property Debate, Peter K. Yu

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No abstract provided.

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

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The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen

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Congress blamed the cybersquatters for the need to pass another trademark cyberlaw. Congress enacted the Anticybersquatting Consumer Protection Act (“ACPA”) on November 29, 1999. The ACPA aimed to protect consumers and businesses, to promote the growth of electronic commerce, and to provide clarity in the law for trademark owners by prohibiting cybersquatting activities on the Internet. Prior to the enactment of the ACPA, the Federal Trademark Dilution Act (“FTDA”), which was passed by Congress in 1995 and became effective on January 16, 1996, was hailed as a powerful tool to combat cybersquatters on the Internet. That presumed powerful tool turned …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

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This commentary will focus on the participants' proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates.

Shifting The Paradigm In E-Commerce: Move Over Inherently Distinctive Trademarks, The E-Brand, I-Brand And Generic Domain Names Ascending To Power?, Xuan-Thao Nguyen

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“What's in a name!” laments Juliet at her Shakespearean balcony. Four hundred years later, in the world of e-commerce, Juliet's question would be “What's in a domain name?” After spending all of the Montague's wealth, Romeo might be able to respond, “Call me but love.com.” The price tag for some generic domain names cost a small fortune: Sex.com for $250 million, Business.com for $7.5 million, Broadband.com for $6 million, Loans.com for $3 million, Flu.com for $1.4 million, and Bingo.com for $1.1 million.

In 1995, Procter and Gamble registered hundreds of generic domain names and offered them for sale at auction …

Should It Be A Free For All? The Challenge Of Extending Trade Dress Protection To The Look And Feel Of Web Sites, Xuan-Thao Nguyen

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In the e-commerce world, a company's web site becomes the primary communication center with the customer. The web site is where the company displays products, presents marketing materials, and provides sales and post-sales support. Increasingly, companies are spending valuable resources to build and maintain their web sites. With the rapid change in web technology, many web sites now feature more than just ordinary text. Color, clipart, graphics, designs, animations, and sounds are now part of the overall appearance of web sites. Yet copying an image from a web site is just one click away. What protection is available to the …

From Pirates To Partners: Protecting Intellectual Property In China In The Twenty-First Century, Peter K. Yu

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No abstract provided.

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

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This Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United States …

Copyright At The Supreme Court: A Jurisprudence Of Deference, Marci A. Hamilton

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No abstract provided.

A Circus Among The Circuits: Would The Truly Famous And Diluted Performer Please Stand Up? The Federal Trademark Dilution Act And Its Challenges, Xuan-Thao Nguyen

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Sometimes, nothing is more painful than the truth. Congress passed the celebrated Federal Trademark Dilution Act of 1995 (“the Act” or the “Dilution Act”) with great hope that it would create a uniform anti-dilution law, end forum shopping, and encourage trademark owners to build brand equity with more ease. Congress was overwhelmingly in favor the Act, and thus passed it with little debate, leaving behind a sparse congressional record. In its haste to pass the Act, Congress failed to address whether the Act extends to product design marks; whether the Act requires proof of actual economic harm, or if likelihood …

The Promise And Perils Of Strategic Publication To Create Prior Art: A Response To Professor Parchomovsky, Rebecca S. Eisenberg

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In a provocative recent article in the Michigan Law Review, Professor Gideon Parchomovsky observes that a firm racing with a competitor to make a patentable invention might find it strategically advantageous to publish interim research results rather than risk losing a patent race. This strategy exploits legal rules limiting patent protection to technological advances that are new and "nonobvious" in light of the "prior art" or preexisting knowledge in the field. By publishing research results, a firm adds to the prior art and thereby limits what may be patented in the future. Parchomovsky posits that, before it is able to …

Analyze This: A Law And Economics Agenda For The Patent System, Rebecca S. Eisenberg

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Legal scholars and economists might enhance the value and impact of their work by making more effective use of each other's knowledge and capabilities. Legal scholars can offer a more nuanced understanding of the legal rules that underlie the patent system and the doctrinal levers that might be manipulated in furtherance of public policy goals. Economists bring to bear a set of analytical and methodological tools that could shed considerable light on what these doctrinal levers are doing and which of them we ought to be manipulating. Together, we have a better chance of asking the right questions and thinking …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

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Accordingly, this Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United …

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

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As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

The Antitrust Duty To Deal And Intellectual Property Rights, James C. Burling, William F. Lee, Anita K. Krug

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This Article discusses how courts have addressed so-called ‘"duty-to-deal" antitrust claims involving intellectual property, and what they should do in those circumstances to ensure appropriate deference to the competition goals of intellectual property doctrine.

Part II discusses duty-to-deal principles in the general case, where intellectual property rights are not at issue, noting that hard and fast rules have yet to emerge.

Part III discusses the approaches courts have taken in the intellectual property context and contends that, although many courts have conducted their analyses with a view to the objectives of patent law, at least two have not, with potentially …

The Use Of Preclusion Doctrine, Antisuit Injunctions, And Forum Non Conveniens Dismissals In Transnational Intellectual Property Litigation, Peter Nicolas

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Conflicting standards among the federal circuits over the applicability of inherent powers in the transnational intellectual property context and the divided authority regarding the jurisdiction of U.S. federal courts over foreign intellectual property claims severely hamper the ability of federal district courts to use these tools in such a manner so as to prevent parties in transnational intellectual property suits from engaging in strategic behavior. This Comment seeks to reconcile these conflicts where possible and, where irreconcilable, to demonstrate that the text and history of federal statutes conferring subject matter jurisdiction on federal courts and placing limits on their issuance …

Digital Frontiers: Law And The Internet: Letter To The U.S. Senate From Marci A. Hamilton, Marci A. Hamilton

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No abstract provided.

How To Do Things With Hegel, David G. Carlson

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The article argues that contract is not merely a tool for pre-existing personalities but is instead constitutive of personality itself. It challenges the conventional view that personality exists prior to law, instead positing that contract is necessary for the emergence and recognition of personality. The author contends that contract is foundational to legal and personal identity, as it establishes mutual recognition and rights between individuals.

The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan

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This Article analyzes the effectiveness of China's intellectual property laws and the role they play in China's foreign trade and investment. It gives an overview of how intellectual property laws developed in China and explains why they have been inadequate, especially with respect to the protection of the interests of U.S. companies. It then illustrates why America's response to the piracy of intellectual property has been largely ineffective. The Article explains why China's strides in intellectual property law have fallen short of expectations and offers alternative methods of protecting intellectual property rights in China.

The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen

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The passage of the Federal Trademark Dilution Act of 1995 (the Dilution Act or Act) has been widely celebrated, as evidenced by the number of related articles, speeches and symposia. Commentators who applauded the adoption of the Dilution Act believed that a dilution claim would now be easier to prove by trademark owners against diluters because trademark owners would not have to establish the troublesome factual issue of consumer confusion. The courts have embraced the Act, and it has already proven to be an effective weapon for trademark owners. One court has even suggested trademark owners asserting claims of dilution …

Farewell Madison Avenue, Marci A. Hamilton

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No abstract provided.

The Top Ten Intellectual Property Law Questions That Should Be Asked About Any Merger Or Acquisition, Marci A. Hamilton

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No abstract provided.

The Empire Strikes Back, A. Michael Froomkin

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No abstract provided.

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

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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.

An Economic Analysis Of Intellectual Property Rights: Justifications And Problems Of Exclusive Rights, Incentives To Generate Information, And The Alternative Of A Government Run Reward System, Steve Calandrillo

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This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society's dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward …

Using Creativity To Fight A $60 Billion Consumer Problem—Counterfeit Goods, Xuan-Thao Nguyen, Maxim H. Waldbaum

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For centuries, consumers have been willing to pay exorbitant prices for unique or premiumquality goods. Throughout the evolution of the "designer label" market, counterfeiters have lurked in the shadows of the economic landscape. Thus, the problem of counterfeit goods represents nothing new in the global economy.

Computer Science Concepts In Copyright Cases: The Path To A Coherent Law, Marci A. Hamilton, Ted Sabety

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No abstract provided.

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

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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

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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.

The Trips Agreement: Imperialistic, Outdated, And Overprotective, Marci A. Hamilton

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According to Professor Hamilton, the TRIPS Agreement constructs international copyright law in the image of Western, Protestant-based capitalist copyright law. She suggests that the Agreement Imposes presuppositions about human value, effort, and reward that contain political, sociological, and legal ramifications. In fact, the Agreement, with its focus upon valuing individual human creative achievement, could spur further developments in Westernbased human rights in the rest of the world. By transplanting Western ideas to the rest of the world, TRIPS may actually encourage anti-authoritarian revolution.

She further suggests that the TRIPS Agreement seeks to establish a free market of intellectual property goods. …