Intellectual Property Law Commons^™

Identifying And Keeping The Genie In The Bottle: The Practical And Legal Realities Of Trade Secrets In Bankruptcy Proceedings, Sharon Sandeen

Faculty Scholarship

Anyone who has been paid attention to developments in the world of business over the past quarter century can attest to the fact that intellectual property (IP) is a hot commodity. Indeed, in contrast to the companies that emerged out of the Industrial Revolution, the companies that have spawned as part of the so-called “Information Age” attribute much of their value and future prospects to intangible, rather than tangible, assets. Unfortunately, while bankruptcy courts have generally recognized the need to distinguish between tangible and intangible assets, particularly when determining whether a claim is secured or unsecured, they often fail to …

"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg

Faculty Scholarship

The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …

Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener

Faculty Scholarship

This report provides an analysis of how intellectual property rights (IPRs), and alternatives to IPRs, might operate in green innovation. Part I of the paper discusses the economics of green innovation, including the important role that will need to be played by the private sector. Part II discusses the IPR issues, principally involving patents, that may arise if and when GHG externalities are addressed through the appropriate pricing of greenhouse gases. Part III addresses alternatives to traditional patents and exclusive licenses, including patent pools, liability rules, and prizes.

Finding Trademark Use: The Historical Foundation For Limiting Infringement Liability To Uses "In The Manner Of A Mark", Margreth Barrett

Faculty Scholarship

No abstract provided.

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin Feldman

Faculty Scholarship

No abstract provided.

Our Uniform Patent System, Clarisa Long

Faculty Scholarship

Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?

The Melting Of Patent Law, Eben Moglen

Faculty Scholarship

In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge.

Should Access To Medicines And Trips Flexibilities Be Limited To Specific Diseases?, Kevin Outterson

Faculty Scholarship

From the perspective of public health, limiting access programs and TRIPS flexibilities to particular diseases would be quite dangerous and unnecessary. Dangerous because the diseases of the world's rich and poor countries are converging, including non-communicative diseases such as heart disease, stroke, diabetes, cancer and depression. Radically cheaper medicines for these conditions could significantly improve health in LMICs. Limitation is also unnecessary because proven tools can be deployed to preserve high-income markets while LMICs pursue equitable flexibilities.

To date, the important global legal texts retain broad application to all relevant diseases, but the some parties continue to propose disease-specific limitations, …

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, David S. Evans, Keith N. Hylton

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

Inventors, Entrepreneurs, And Intellectual Property Law, Michael J. Meurer

Faculty Scholarship

I am not sure why small business concerns have not had more influence on IP law. Perhaps the sentiment prevailing in antitrust law spilled over into IP law. American antitrust law has reached a near consensus that small firms get no special treatment under a law designed to protect competition, not competitors. ° In contrast, European competition law regulators are more likely to protect small business, and European patent policymakers openly fret about how to reform their patent law to promote small business.²

Regardless, my concern in this Article is mostly with the normative question: Should IP law favor …

Do Patents Perform Like Property?, Michael J. Meurer, James Bessen

Faculty Scholarship

Do patents provide critical incentives to encourage investment in innovation? Or, instead, do patents impose legal risks and burdens on innovators that discourage innovation, as some critics now claim? This paper reviews empirical economic evidence on how well patents perform as a property system.

Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon

Faculty Scholarship

A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,² a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held …

The Mythical Beginnings Of Intellectual Property, Jessica Silbey

Faculty Scholarship

People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This …

Tolerated Use, Tim Wu

Faculty Scholarship

"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …

Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg

Faculty Scholarship

In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one's start-up capital from other people's copyrights. The Court's elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation …

Patent Judicial Wisdom, Srividhya Ragavan

Faculty Scholarship

This paper discusses the role of the Indian Judiciary vis-A-vis the patent regime, but carefully avoids creating an exhaustive wish list. Instead, this paper uses illustrations from the United States to draw valuable lessons. Importantly, the paper does not advocate that the Indian Judiciary emulate the United States judiciary. In fact, conventional wisdom dictates that copying the policies or precedents of the West does not always work in developing countries given the stark differences in ground realities like poverty, investments, infrastructure, and other such indicators. Instead, the judicial wisdom that characterizes each of the illustrations sets the common thread for …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman

Faculty Scholarship

Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …

Building A Better Innovation System: Combining Facially Neutral Patent Standards Withtherapeutics Regulation, Arti K. Rai

Faculty Scholarship

No abstract provided.

Filtering, Piracy Surveillance And Disobedience , Sonia K. Katyal

Faculty Scholarship

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players …

Competition Law And Copyright Misuse, John T. Cross, Peter K. Yu

Faculty Scholarship

In the past two decades, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection has increased, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. In response to these abuses, courts, litigants, policy makers, and commentators have increasingly embraced competition law, the doctrines of copyright misuse and unclean hands, and tort law concepts as counter-balancing tools. This article discusses four different types of abuse that has occurred in the copyright area and examines the various legal doctrines …

The International Enclosure Movement, Peter K. Yu

Faculty Scholarship

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

Has India Addressed Its Farmers' Woes? A Story Of Plant Protection Issues, Srividhya Ragavan, Jamie Mayer O'Shields

Faculty Scholarship

The paper examines issues relating to establishing breeders rights in developing nations by taking India as an example. At the outset, the paper examines the international obligations relating to protecting plant breeder’s rights by examining the requirements under Article 27.3 of the TRIPS agreement. In doing so, the paper examines analyzes what amounts to an effective sui generis system as required under TRIPS.

Further, the paper analyzes the constituents of the models currently touted by developed nations and outlined under the Union for Plant Variety Protection (UPOV, 1991) to determine the model’s ability to fulfill the TRIPS requirement. In determining …

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going, Robert B. Ahdieh, Zhu Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Faculty Scholarship

The focus of this panel is incrementally shifting from the previous panel. Whereas the previous was looking at public/private issues and issues relating to incentivizing innovation in the subject countries, we're going to take a focus more on, I think it's safe to say, from an external perspective looking at these countries and issues that are confronted by businesses who our either planning to deal with the four subject countries or are concerned about their technologies being used in their four subject countries.

We have four panelists, and each of them is going to speak to one of the four …

Ten Common Questions About Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational.

This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human …

What's Wrong With The Patent System? Fuzzy Boundaries And The Patent Tax, James Bessen, Michael J. Meurer

Faculty Scholarship

The annual number of patent lawsuits filed in the U.S. has roughly tripled from 1970 to 2004. The number of suits was more or less steady in the 1970s, climbed slowly in the 1980s, and exploded in the 1990s. Why? The usual answers point to (1) the growth of the “new economy” and the concomitant explosion of patenting, (2) the failure of the Patent Office to reject patents on old or obvious inventions, or (3) the rise of the patent troll. There is an element of truth in all these answers, but even collectively they do a poor job explaining …

International Enclosure, The Regime Complex, And Intellectual Property Schizophrenia, Peter K. Yu

Faculty Scholarship

The year 2005 marked the tenth anniversary of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Since it entered into effect on January 1, 1995, the Agreement has impacted a wide variety of areas, including agriculture, health, the environment, education, culture, competition, free speech, democracy, and the rule of law. Today, intellectual property protection has been considered a major issue in both the domestic and international policy debates, and policymakers have actively explored intellectual property issues in many different international regimes. These regimes range from public health to human rights and from biological diversity to information and communications.

As …

An Empirical Look At Software Patents, James Bessen, Robert M. Hunt

Faculty Scholarship

U.S. legal changes have made it easier to obtain patents on inventions that use software. Software patents have grown rapidly and now comprise 15 percent of all patents. They are acquired primarily by large manufacturing firms in industries known for strategic patenting; only 5 percent belong to software publishers. The very large increase in software patent propensity over time is not adequately explained by changes in R&D investments, employment of computer programmers, or productivity growth. The residual increase in patent propensity is consistent with a sizeable rise in the cost effectiveness of software patents during the 1990s. We find evidence …

Reconceptualizing Intellectual Property Interests In A Human Rights Framework, Peter K. Yu

Faculty Scholarship

Since the establishment of the World Trade Organization and the entering into effect of the TRIPs Agreement, government officials, international bureaucrats, intergovernmental and nongovernmental organizations, courts, and scholars have focused more attention on the interplay of human rights and intellectual property rights. For example, the U.N. Sub-Commission on the Promotion and Protection of Human Rights recently noted the considerable tension and conflict between these two sets of rights. To avoid these conflicts, the Sub-Commission recommended the primacy of human rights obligations over economic policies and agreements.

While this hierarchy of rights appears straightforward, the situation is actually more complicated because …

Not All Property Is Created Equal: Why Modern Courts Resist Applying The Takings Clause To Patents, And Why They Are Right To Do So, Davida H. Isaacs

Faculty Scholarship

After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment's Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders' regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as property. Meanwhile, last year's rejection by the Federal Circuit of a patentholder's right to assert a Takings Clause claim …