Intellectual Property Law Commons^™

Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg

Articles

This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of outlays …

Painting The Law, Nancy Illman Meyers

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ice Patch On The Information Superhighway: Foreign Liability For Domestically Created Content, Alexander Gigante

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Copyright For Visual Art In The Digital Age: A Modern Adventure In Wonderland, Jeanne English Sullivan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Duration Of Copyright And The Limits Of Cultural Policy, J. H. Reichman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Digital Performance Right In The Sound Recordings Act Of 1995: Can It Protect U.S. Sound Recording Copyright Owners In A Global Market?, Rebecca F. Martin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Property (And Copyright) In Cyberspace, I. Trotter Hardy

Faculty Publications

No abstract provided.

Intellectual Property At The Public-Private Divide: The Case Of Large-Scale Cdna Sequencing, Rebecca S. Eisenberg

Articles

The Human Genome Project provides fertile ground for studying the role of intellectual property at the wavering boundary between public and private research science. It involves a major commitment of both public and private research funds in an area that is of significant interest both to research scientists working in university and government laboratories and to commercial firms. It thus provides a wealth of new scientific discoveries that are simultaneously potential candidates for commercial development and inputs into further research. Its obvious implications for human health raise the stakes of getting the balance between private property and public access right, …

Compliance With The Trips Agreement: Introduction To A Scholarly Debate, J. H. Reichman

Vanderbilt Journal of Transnational Law

The first symposium held on the proposals to include intellectual property rights within the Uruguay Round of multilateral trade negotiations' was published by The Vanderbilt Journal of Transnational Law in 1989. It seemed only fitting to return to this same Journal with a retrospective evaluation of the finished product by members of the American Association of Law Schools' (AALS) Intellectual Property Section in 1996. That product is Annex IC of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), better known as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement or Agreement). This Agreement has already …

Trips Boomerang--Obligations For Domestic Reform, Harold C. Wegner

Vanderbilt Journal of Transnational Law

Today, one of the biggest obstacles facing inventors is the problem of patent harmonization. Inventors, who spend their time, money, and resources to develop new technology, are faced with the problem of ensuring that their new development receives patent protection not only in their home countries, but also worldwide. This problem is complicated by the fact that the United States maintains a different patent filing process than most other developed nations. Efforts of the international community to harmonize these different approaches, however, have been only partially successful.

In this Article, Professor Wegner examines the latest attempt by the international community …

Worldwide Copyright Protection Under The Trips Agreement, Eric H. Smith

Vanderbilt Journal of Transnational Law

The author begins by analyzing the purposes of the TRIPS Agreement. He then discusses piracy losses on a regional and global basis, emphasizing industry-based variations and the economic impact of these losses. Mr. Smith then examines several of the key implementation problems surrounding TRIPS, including the use of transition phase-in periods for developing countries, and the availability of civil and criminal sanctions. Finally, he highlights other specific portions of the TRIPS Agreement that may engender future controversy.

International Copyright: An Unorthodox Analysis, Hugh C. Hansen

Vanderbilt Journal of Transnational Law

Professor Hansen reviews the development of copyright from its traditional domestic orientation to the modern emphasis on globalization and harmonization. His commentary analogizes modem trends in International copyright to religious equivalents. He notes that the current players include a "secular priesthood" (the traditional copyright bar and academics), "agnostics and atheists" (newer academics and lawyers, particularly those concerned with technology and the culture of the public domain) and "missionaries" (whose task it is to increase copyright protection around the world and who are primarily driven by trade considerations). The copyright "crusade" has been driven by this last group.

The author compares …

Trade, Competition, And Intellectual Property--Trips And Its Antitrust Counterparts, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules.

Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own.

She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …

Prospects And Limits Of The Patent Provision In The Trips Agreement: The Case Of India, Martin J. Adelman, Sonia Baldia

Vanderbilt Journal of Transnational Law

This Article analyzes the impact of TRIPS on the pharmaceutical industry in India, an industry that has traditionally taken a "free-ride" on the technological developments of other nations. The authors discuss the patent system in India prior to TRIPS and India's long-term refusal to join the Paris Convention regarding intellectual property.

In the past, India had limited protection for technology. Some areas--food, pharmaceuticals, and products made by processes--received no patent protection at all. TRIPS changed this system and also changed the compulsory licensing and license of right provisions that limited patent protection in India. The authors argue that all people--scientists …

Compliance With Trips: The Emerging World View, Adrian Otten, Hannu Wager

Vanderbilt Journal of Transnational Law

This Article provides an overview of the substantive provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The authors begin by explaining how the TRIPS Agreement signals a new emphasis on protecting intellectual property in the international trading system and the World Trade Organization. They then discuss the Agreement's obligations on substantive protection, as well as its enforcement and dispute resolution mechanisms. Finally, the authors address the international plans for the Agreement's implementation and administration. Otten and Wager conclude that, while it does not solve all the problems related to international intellectual property matters, the TRIPS Agreement …

Doctrine Of Equivalents After Hilton Davis: A Comparative Law Analysis, Toshiko Takenaka

Articles

This Article will address a number of major topics. First, it discusses the Federal Circuit's renewed interest in Graver Tank and the merger of the infringement test with the patentability test established by the Supreme Court in Graham v. John Deere Co. Then, this Article responds to the dissenting judges in Hilton Davis who emphasized the danger of uncertainty that stems from the in-principle application of the doctrine of equivalents. This response explains that the application of the doctrine does not increase the uncertainty in determining infringement but, rather, encourages clear, definitive claim drafting. It then examines the relationship …

Does A Cultural Barrier To Intellectual Property Trade Exist? The Japanese Example, Toshiko Takenaka

Articles

What is the so-called "cultural barrier to intellectual property trade?" No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this "cultural barrier to intellectual property trade" theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign …

A Brief Defense Of Mass Market Software License Agreements, Robert W. Gomulkiewicz

Articles

In the rapidly changing world of personal computer software, the end user license agreement ("EULA") has endured. The EULA is a familiar component of most personal computer software transactions. Many commentators, however, have maligned the practice of standard form software licensing. A survey of the literature on the subject might lead one to conclude that there are only critics--and no proponents--of EULAs.

Despite the din of criticism, EULAs continue to be widely usedby almost every mass-market software publisher, even though the cost of doing so is significant. This Article explains the value of EULAs for both software publishers and users, …

Ambushing The Olympic Games, Robert N. Davis

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Antitrust Liability Premised, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This article will explore potential antitrust liability arising from attempted enforcement of invalid patents or trade secrets known to be invalid. A fundamental tension exists between the law of intellectual property and antitrust law. Federal patent laws and the state law doctrines of trade secrets confer on the holder exclusive rights to exploit an invention or creation and to exclude others from its use. The rationale of the patent laws and state intellectual property laws is to foster innovation and to provide inventors with protection for the fruits of their labor. By contrast, antitrust laws embody a public policy …

The Ancient Doctrine Of Trespass To Web Sites, I. Trotter Hardy

Faculty Publications

No abstract provided.

Commentary: The International Intellectual Property Order Enters The 21st Century, Frederick M. Abbott

Vanderbilt Journal of Transnational Law

This Commentary followed presentation of the first two articles in this volume at a meeting on the TRIPS Agreement. The commentator first reflects on the theme of Professor Oddi's article, and suggests that the TRIPS Agreement must be evaluated in the broad context of the Uruguay Round bargain. He observes that the potential economic impact of the TRIPS Agreement on global economic development is of central concern, and that much work remains to be done both in refining economic analysis of the Agreement, and in addressing developmental issues. The commentator then discusses renewed interest in the activities of WIPO, and …

Trips--Natural Rights And A "Polite Form Of Economic Imperialism", A. S. Oddi

Vanderbilt Journal of Transnational Law

This Article discusses the current predominance of natural rights theory in the area of intellectual property and of patents in particular. Due to the alleged problems of international theft and pirating of patents, the recent GATT negotiations saw intellectual property law come to center stage in the debate over trade. These negotiations concluded that trade-related aspects of intellectual property law can no longer be left to the public policy of individual countries, but require new international minimum standards.

The author discusses how the basic principles of natural rights theory have been used to convince the world community to move toward …

Goodbye To All That--A Reluctant (And Perhaps Premature) Adieu To A Constitutionally-Grounded Discourse Of Public Interest In Copyright Law, Peter A. Jaszi

Vanderbilt Journal of Transnational Law

In this Article, Professor Jaszi suggests that there is a need to develop new, policy-grounded arguments against expansionist legislative and judicial tendencies in copyright that diminish the traditional public domain. In recent years, he contends, a new understanding of the purposes of a copyright system has emerged, which has changed the U.S. copyright discourse in support of increased proprietary rights. According to Professor Jaszi, the objective of this new understanding is to improve the competitive position of companies that have significant investments in Inventories of copyrighted works. Recognizing the Uruguay Round Amendments Act (URAA) as an episode in this new …

Copyright Duration Extension And The Dark Heart Of Copyright, Marci A. Hamilton

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Copyright Term Extension Act Of 1995: Or How Publishers Managed To Steal The Bread From Authors, William F. Patry

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cyberlaw And Social Change: A Democratic Approach To Copyright Law In Cyberspace, Niva Elkin-Koren

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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

Vanderbilt Journal of Transnational Law

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 Western-based 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. …

Trademarks And Geographical Indications: Exploring The Contours Of The Trips Agreement, Paul J. Heald

Vanderbilt Journal of Transnational Law

Professor Heald focuses upon the trademark provisions of TRIPS, which have received less attention than the patent and copyright provisions. He closely examines TRIPS' substantive trademark provisions, including the definition of trademark, eligibility for registration, rights of registrants, and assignments / licensing. Professor Heald then considers geographical indications of products' origins, particularly the unique issues raised by the wine and spirits industry. He also discusses enforcement issues, absence of use requirements, dispute resolution, and the U.S. domestic implementing legislation before closing with a general assessment of the pluses and minuses TRIPS offers in the area of trademark protection.

Prospects For Developing Countries Under The Trips Agreement, Ruth L. Gana

Vanderbilt Journal of Transnational Law

This Article focuses on the future impact of the TRIPs Agreement on developing countries with regard to patent and copyright protection. While some scholars have suggested that the intellectual property protection provided by the TRIPs Agreement significantly benefits developing countries just as well as such protection has benefited developed countries in terms of increased economic growth and development, the author of this Article disagrees. Upon close analysis of the TRIPs Agreement's impact on developing countries, including the use of illustrative examples and a case study of the People's Republic of China with regard to copyright protection, this author concludes that …