Intellectual Property Law Commons^™

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Law Faculty Scholarship

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Copyright Law And Pornography: Reconsidering Incentives To Create And Distribute Pornography, Ann Bartow

Law Faculty Scholarship

As it moved into the mainstream in the 1970s and early 1980s, pornography obtained copyright protections through judicial fiat, rather than as a result of legislative action. This essay explains how pornography came to be eligible for copyright protections, discusses the social and legal effects of this change, and raises questions about the propriety of according pornography the full benefits of copyright law without taking into account the harms that pornography production can inflict on subordinated or coerced "performers."

When Bias Is Bipartisan: Teaching About The Democratic Process In An Intellectual Property Law Republic, Ann Bartow

Law Faculty Scholarship

[Introduction]: Intellectual property law courses offer law professors the opportunity to teach a subject area rich with complicated statutory and court-made doctrines about which students do not usually have strong or extensively delineated moral views. I It also gives everyone in the classroom a refreshing break from the traditional partisanship of political party politics. Identification as a Democrat or Republican does not provide too much guidance or create too many expectations about a person's views of intellectual property issues, freeing classroom debates from the constrictions that political loyalties impose in so many other contexts.

Franklin Pierce Law Center Educational Report: Patent Landscape Of Dna Vaccines For Hiv, Jon R. Cavicchi, Stanley P. Kowalski

Law Faculty Scholarship

No abstract provided.

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Law Faculty Scholarship

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

The True Colors Of Trademark Law: Green-Lighting A Red Tide Of Anti Competition Blues, Ann Bartow

Law Faculty Scholarship

The elevation of color to stand-alone trademark status illustrates the unbounded nature of trademarks within the judicial consciousness. The availability of color-alone marks also facilitates the commoditization of color in ways that complicate the development and distribution of products and services that use color for multiple purposes conterminously. The economic case for color-alone trademarks is severely undermined by careful observation of the ways that colors are actually deployed in commerce, which makes it clear that the trademarks of multiple goods and services can utilize the same color to telegraph the same message without confusing anyone or diluting the commercial power …

U.S. Patent Literature Survey Of Agrobacterium-Mediated Transformation Of Sweet Potato (Ipomoea Batatas), Jon R. Cavicchi, Stanley P. Kowalski, J. Jaya Murthy, Rahul R. Vartak

Law Faculty Scholarship

A team of researchers and patent information scientists at Franklin Pierce Law Center were asked to evaluate the patent and literature landscape related to the Agrobacterium-mediated transformation in sweet potato with respect to the U.S. patents and patent applications. This report provides a patent landscape of the Agrobacterium-mediated transformation of sweet potato. The report includes the applicable methods of transformation and has also included certain patents and patent applications which claim a transformed plant by virtue of these methods. In certain cases, the claim structure covers Agrobacterium-mediated transformation technology via system and composition of matter claims and not the more …

Freedom-To-Operate In The Crop Sciences: Procedure, Stanley P. Kowalski

Law Faculty Scholarship

Freedom to operate (FTO) is the ability to proceed with research, development and commercialization of a crop science product, while fully accounting for any potential risks of infringing activity, that is, whether a product can be made, used, sold, offered for sale, or exported, with a minimal risk of infringing the unlicensed intellectual property rights (IPRs) or tangible property rights (TPRs) of another. An FTO analysis begins with the ‘FTO team’ systematically dissecting the crop science product into the components, combination of components, processes and germplasm that went into its research and development. This is followed by generating a series …

Intellectual Property Management In Health And Agricultural Innovation: A Handbook Of Best Practices, Vol. 2, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Trademarks Of Privilege: Naming Rights And The Physical Public Domain, Ann Bartow

Law Faculty Scholarship

This paper critiques the branding and labeling of the physical public domain with the names of corporations, commercial products, and individuals. It suggests that under-recognized public policy conflicts exist between the naming policies and practices of political subdivisions, trademark law, and right of publicity doctrines. It further argues that naming acts are often undemocratic and unfair, illegitimately appropriate public assets for private use, and constitute a limited form of compelled speech. It concludes by considering alternative mechanisms by which the names of public facilities could be chosen.

Intellectual Property Management In Health And Agricultural Innovation: Executive Guide, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Intellectual Property Management In Health And Agricultural Innovation: A Handbook Of Best Practices, Vol. 1, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Rational Risk/Benefit Analysis Of Genetically Modified Crops, Stanley P. Kowalski

Law Faculty Scholarship

Safety concerns over the use of molecular biotechnology in the improvement of crops has generated substantial, heated and confusing debates, often driven by ideology and hysterics. Modification of crops is not new, and biotechnology (in its broadest sense) has been used for over a century to accelerate the development of new crops for food, feed and fibre, so as to meet the demands of a growing global community. The introduction of crops developed via molecular biotechnology [Genetically Modified Crops (GMCs)] represents the latest step in this inexorable innovative progression of technology. However, misinformed concern has led to a broad embrace …

Ip And The Global Public Interest: Challenges And Opportunities, Jon R. Cavicchi, Stanley P. Kowalski

Law Faculty Scholarship

[Excerpt from article] Intellectual property (IP) capacity is essential for economic development, particularly as countries transition into the higher technology sectors, for example biotechnology. For developing countries, a commitment to minimal IP rights protection will determine inclusion in the World Trade Organization (WTO), facilitate access to foreign-direct investment, and accelerate economic development. However, on a more fundamental level, capacity in IP management will affect whether a country can provide basic health and nutritional needs for its citizens. For example, sustainable food security presents a serious challenge in many developing countries; as their economies rapidly emerge, urban centers expand, arable land …

Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca

Law Faculty Scholarship

In January 2007, the Sixth Circuit Court of Appeals decided Brilliance Audio, Inc. v. Haights Cross Communications, Inc. and answered a lingering question concerning the Copyright Act that had persisted for over twenty years. The court decided whether the protections offered to the music industry under the poorly drafted Record Rental Amendment of 1984 also extended to audiobooks and other non-musical works. This Act deprives owners of items such as tapes and compact discs from renting those items to others without the consent of the copyright owners of the recorded song and the written lyrics and music - a right …

Lexis V. Westlaw For Research - Better, Different, Or Same And The Qwerty Effect?, Jon R. Cavicchi

Law Faculty Scholarship

There are synchronistic moments when in the process of writing. While contemplating this article, an email message made its way to my desk, past Pierce Law Center's spam firewall with the following subject line: "Pepsi v. Coke-Tell Us--Get $10." Do IP researchers choose Lexis or Westlaw justified by taste? Surely you jest, some voice said to me. Repressing this message, I proceeded to compare platform content, perform literature searches, and poll students and IP professors.

Yet another synchronistic moment came as the email from those taking the poll steamed into my email. Many IP professors indicated that they made the …

Mining The Web For Law Related Jobs In Intellectual Property In The United States, Jon R. Cavicchi

Law Faculty Scholarship

Intellectual property law has remained the hottest practice group for over a decade; it is one of the fastest-growing and most exciting fields today. The trend was clearly recognized as early as 1995 in an article Lesley Ellen Harris. 2 As far back as 1997, according to The National Law Journal, IP has been reported to be the most highly compensated segment of the legal profession for both trial and non-trial attorneys. 3 This article examines the process of finding IP jobs on the web.

Intellectual Property Management Strategies To Accelerate The Development And Access Of Vaccines And Diagnostics: Case Studies On Pandemic Influenza, Malaria And Sars, Anatole Krattiger, Stanley P. Kowalski, Robert Eiss, Anthony Taubman

Law Faculty Scholarship

Achieving global access to vaccines, diagnostics, and pharmaceuticals remains a challenge. Throughout the developing world, intellectual property (IP) constraints complicate access to critically essential medical technologies and products. Vaccines for malaria and pandemic strains of influenza, as well as diagnostic and vaccine technologies for SARS, are not only relevant to global public health but are particularly critical to the needs of developing countries. A global access solution is urgently needed. This article offers a timely case‐by‐case analysis of preliminary patent landscape surveys and formulates options via patent pools and other forms of creative IP management to accelerate development and access. …

Rule-Making Petition Concerning Eligibility, Under 37 C.F.R. § 11.7 To Sit For The Examination For Registration To Practice In Patent Cases Before The United States Patent And Trademark Office, Thomas G. Field Jr.

Law Faculty Scholarship

This Petition under 5 U.S.C. § 553(e) is filed on behalf of Petitioner and other parties with legally-cognizable interest (hereafter “Signatories”) in the specification of credentials under guidelines promulgated by the PTO Office of Enrollment and Discipline (“OED”) and amended from time without public notice or opportunity to comment. Signatories include individuals likely to be unfairly refused permission to sit, individuals whose status is uncertain, and professors with an interest in whether their students may or may not be permitted to sit. Signatories hereby request that the PTO, in accordance with 35 U.S.C. § 2(b)(2)(D), amplify the qualifications sufficient to …

Intellectual Property: The Practical And Legal Fundamentals, Thomas G. Field Jr

Law Faculty Scholarship

Patents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly. However, people have come increasingly to view privately funded innovation as critical to national economic well-being and to agree that such innovation cannot occur unless companies that succeed in the marketplace can recoup their research, development and marketing costs. That is a major function of IP, and, particularly within the past dozen years, IP has been seen, both here …

Trademark Searching Tools And Strategies: Questions For The New Millennium, Jon R. Cavicchi

Law Faculty Scholarship

The intent of this discussion is to raise questions about trademark searching which will be discussed in future issues of IDEA. I will lead you through the questions raised by my journey through primarily legal literature in treatises and periodicals on the Lexis and Westlaw platforms.

Keeping Up To Date With Ip News Services And Blogs: Drowning In A Sea Of Sameness?, Jon R. Cavicchi

Law Faculty Scholarship

It seems like so many IP related Websites you visit invite you to join their free email list to keep you up to date. Sources span a wide spectrum including governmental organizations, non-governmental organizations, educational institutions, consulting services, law firms, commercial publishers and more. These sources span the spectrum from free, to low fee to premium pricing. With all of this information overload and choices, how do you differentiate and choose news sources?

The goals of this article are twofold. Goal one is to present a survey of types and categories of IP news tools available to IP researchers. Since …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Pierce Law Participates In Pandemic Influenza Vaccine Ip Management Meeting, Stanley P. Kowalski

Law Faculty Scholarship

On April 18, 2006 several members of the greater Pierce Law community participated in an important meeting held at the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. Organized by The Centre for the Management of Intellectual Property in Health Research and Development (MIHR), the meeting “Intellectual Property Management Strategies to Facilitate Early Access and Global Health Benefits: Case Studies in Pandemic Influenza and Malaria” had the objective of exploring and discussing IP issues which impact the distribution of vaccines to developing countries, a topic of heightened worldwide importance given the potential threat of a global influenza pandemic. In an …

Intellectual Property Research: From The Dustiest Law Book To The Most Far Off Database, Jon R. Cavicchi

Law Faculty Scholarship

This issue of IDEA introduces a regular series of articles on intellectual property research tools and strategies based on my experience for over a decade as Intellectual Property Librarian and Research Professor at Franklin Pierce Law Center. Pierce Law is consistently ranked among the top law schools training IP professionals. I have taught IP legal research, patent, trademark and copyright searching to hundreds of students and IP professionals in Pierce Law Graduate Programs. I have tackled hundreds of reference and research questions as well as working on countless projects requiring IP information. So I have been faced with challenges and …

Comment On Orphan Works, Thomas G. Field Jr

Law Faculty Scholarship

Terms of absolute exclusion exceeding the shelf life of particular works give no advantage to authors and publishers, and compulsory licenses are a fair means to increase public access.

Technology Worth Patenting, Thomas G. Field Jr

Law Faculty Scholarship

Inevitably scarce resources are better invested in deciding which [patent] applications are worth filing and seeking the broadest defensible claims for those that are chosen. Whether a patent can be obtained for less than, say, $10,000 is the wrong question. Whether a patent is worth having is the better question—particularly from the standpoint of prospective licensees.

Intellectual Property And Indigenous Peoples: Adapting Copyright Law To The Needs Of A Global Community, Megan M. Carpenter

Law Faculty Scholarship

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, …

Copyright Protection For Perfumes, Thomas G. Field Jr

Law Faculty Scholarship

In June 2004, the Lancome opinion from the Netherlands held that perfume compositions are copyrightable. NautaDutilh, the firm that represented Lancome, claimed the ruling was "internationally groundbreaking."

The thesis of this paper is that the Dutch Court erred in protecting compositions rather than scents or fragrances. As discussed below, such an approach runs afoul of basic copyright principles here and abroad.

Judicial Review Of Copyright Examination, Thomas G. Field Jr

Law Faculty Scholarship

Copyright in qualifying United States works has always arisen upon creation. For many years, however, rights could be lost by failing to, e.g., provide notice, register and deposit copies when works were first published. In 1909 formal requirements were reduced, and the Supreme Court, in 1939, concluded that registration with the U.S Copyright Office was unnecessary to retain rights. Despite that, owners could not sue infringers without having registered.

Regarding registration as helpful if not obligatory, this paper compares the burden on moving parties in circumstances in which registration decisions may be challenged in courts.