Intellectual Property Law Commons^™

The Enola Bean Patent Controversy: Biopiracy, Novelty And Fish-And-Chips, Gillian N. Rattray

Duke Law & Technology Review

Should traditional knowledge be patentable? As the number of patents filed by large corporations for native crops has increased, activists have become concerned about the economic effects of these patents on indigenous people. This iBrief discusses the attempts by one group of activists to test the validity of such patents in the United States and explores the issue of biopiracy in the Third World.

How Wide Should The Gate Of "Technology" Be? Patentability Of Business Methods In China, Joy Y. Xiang

Washington International Law Journal

China regards business methods to be a form of mental activity, and consequently excludes them from patent protection. In recent years, along with the proliferation of computer, telecommunication, and Internet technologies, the line between business methods and technology has blurred. As a result, other patent systems, such as U.S. patent law, have modified or are re-evaluating their patent treatment of business methods. The Chinese patent system is designed to promote the progress of science and technology. Business methods having no technical characters are not technological art. It would thus be overly inclusive to regard every business method as "technology" and …

Festo: A Case Contravening The Convergence Of Doctrine Of Equivalents Jurisprudence In Germany, The United Kingdom, And The United States, Katherine E. White

Michigan Telecommunications & Technology Law Review

Despite differences in patent law jurisprudence in Germany, the United Kingdom and the United States, the fundamental principles underlying each system serve the same basic purpose: to encourage technological innovation and dissemination of knowledge. In granting exclusive patent rights, it is important that the scope of patent protection not be so broad as to remove existing knowledge from the public domain. The scope of protection should strike a balance between granting adequate patent rights while preserving the public's ownership in the public domain or the prior art. To encourage innovation patentees must attain significant exclusive rights, while potential infringers receive …

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

Converting Intellectual Assets Into Property, Thomas G. Field Jr

Law Faculty Scholarship

The mouse and graphic interface were first commercialized on Macintosh computers. Yet, Steve Jobs is said to have derived both from the Alto computer developed by Xerox's Palo Alto Research Center. While Jobs became a billionaire, "Xerox completely failed to get into the personal computer business, missing one of the biggest business opportunities in history."

Preferring to be more akin to Apple than to Xerox, firms are increasingly mindful that their most valuable assets are apt to be ideas and information instead of land, buildings and inventory. Not capable of being fenced in or locked up, intangible assets can be …

Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon

Scholarship Chronologically

Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.

Who Owns The Back Of A Baseball Card?: A Baseball Player's Rights In His Performance Statistics, Jack F. Williams

Cardozo Law Review

No abstract provided.

An Interview With Caspar Bowden, Joseph Goodman

Duke Law & Technology Review

Caspar Bowden ([email protected]) is the author of a recent DLTR article, Closed Circuit Television for Inside Your Head: Blanket Traffic Data Retention and the EmergencyAnti-Terrorism Legislation. He is the Director of the Foundation for Information Policy Research (http://www.fipr.org), an independent non-profit think-tank that undertakes research on the interaction between information technology and society, technical developments with significant social impact, and public policy alternatives. He was formerly a consultant specializing in Internet security and e-commerce, senior researcher of an option-arbitrage trading firm, a financial strategist with Goldman Sachs, and chief algorithm designer for a virtual reality software house. We interviewed Mr. …

Court Gives Thumbs-Up For Use Of Thumbnail Pictures Online, Kelly Donohue

Duke Law & Technology Review

In the online world, where intellectual property rights can be violated with the simple click of a mouse, innovation sometimes finds itself engaged in a game of chicken with the law. Recently, online-photo-search engine Ditto.com played just such a game, taking their fight to the Ninth Circuit Court of Appeals. The Ninth Circuit's holding protects Ditto.com's use of copyrighted photos as transformative fair use. But the holding also addresses inline linking and framing, warning that they can violate copyright even in the face of a fair use.

Brief Amici Curiae Of The Progressive Intellectual Property Law Association And The Union For The Public Domain In Partial Support Of Petitioners, Eldred V. Ashcroft, 537 U.S. 186 (2003), Michael H. Davis

Law Faculty Briefs and Court Documents

This case affords this Court a unique opportunity to do more by doing less. Judicial restraint generally impels this Court to decide only essential constitutional issues. Here the issues are uniquely situated so that the decision of only one issue—that of retrospective extensions—will do far more than merely defer the remaining issue of prospective extensions, but will render that issue permanently beyond any need of judicial review. If this Court decides that retrospective extensions are unconstitutional, it will not only be able to avoid deciding the other issue today of whether a prospective extension violates the “limited times” Constitutional provision3 …

Reach-Through Claims In The Age Of Biotechnology , Stephen G. Kunin, Mark Nagumo, Brian Stanton, Linda S. Therkorn, Stephen Walsh

American University Law Review

No abstract provided.

Trade Secrets, Property, And Social Relations, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Recent Developments In The Law Of Comparative Advertising In Italy – Towards An Effective Enforcement Of The Principles Of Directive 97/55/Ec Under The New Regime?, Irene Calboli

Faculty Scholarship

On February 25, 2000, the Italian Government adopted Legislative Decree No. 67, which enacted Directive 97/55/EC amending Directive 84/450/EEC concerning misleading advertising, so as to include comparative advertising. Contrary to what one could have expected in a country that has traditionally banned comparison in advertisements, Italy was one of the first among the Member States to implement Directive 97/55/EC. In order to allow consistent enforcement practices, however, the adoption of the new law must be followed by a profound change in the ways Italian courts and legal operators have approaches this issue so far. This Article explores this issue and …

Harmony And Diversity In Global Patent Law, John F. Duffy

Faculty Publications

The second half of the twentieth century saw the rise of a broad movement to harmonize patent laws across nation-states. The most recent, and most significant, manifestation of this movement is the 1994 TRIPS Agreement, which requires signatory nations to adopt uniform rules on many major issues of patent law. The TRIPS Agreement has now been implemented by well over one hundred countries, including almost all major industrial nations, and it heralds a new level of international uniformity in patent law.

This Article, while acknowledging the value of some harmonization of national law , explores the possible costs of the …

U.S. Industries, Trade Associations, And Intellectual Property Lawmaking, Jacques J. Gorlin

Cardozo Journal of International and Comparative Law

The article discusses the role of U.S. industries and trade associations in shaping intellectual property (IP) lawmaking, particularly through the establishment of the Intellectual Property Committee (IPC) and its influence on the TRIPS agreement. The author argues against the notion of a corporate "conspiracy" behind TRIPS, instead highlighting the strategic lobbying efforts by industries to include IP issues in international trade negotiations. The article emphasizes the political and legal implications of TRIPS implementation and enforcement.

U.S. Industries, Trade Associations, And Intellectual Property Lawmaking, Geralyn Ritter

Cardozo Journal of International and Comparative Law

The article argues that the U.S. trade policymaking process is an open, inclusive system where diverse voices—including NGOs and consumer groups—meaningfully influence outcomes. It rejects the notion that intellectual property (IP) policy is driven solely by corporate interests, asserting instead that strong IP protections benefit both industry and consumers by fostering economic growth.

U.S. Industries, Trade Associations, And Intellectual Property Lawmaking, Shira Perlmutter

Cardozo Journal of International and Comparative Law

The article argues that private sector participation in policymaking, while potentially leading to overly complex legislation, generally fosters a more rational, balanced, and politically acceptable outcome. It posits that transparency and inclusivity—both at the national and international levels—are essential for ensuring that policy is informed by practical expertise and public interest.

U.S. Industries, Trade Associations, And Intellectual Property Lawmaking, Eric H. Smith

Cardozo Journal of International and Comparative Law

The article discusses the role of the private sector and government collaboration in shaping international copyright law, emphasizing the balance achieved in treaties like the DMCA and the importance of intellectual property protection for economic development globally. It highlights how the private sector, including U.S. industries, influenced treaty negotiations and argues that intellectual property protection benefits both developed and developing countries by combating piracy and fostering economic growth.

U.S. Industries, Trade Associations, And Intellectual Property Lawmaking, Robert Stoll

Cardozo Journal of International and Comparative Law

The article emphasizes the critical role of effective intellectual property (IP) enforcement in fostering economic development, particularly in developing countries, and highlights the significant influence of U.S. industries and trade associations in shaping both domestic and international IP law and policy. It underscores the importance of collaboration between the private sector and government agencies like the U.S. Patent and Trademark Office (USPTO) in refining IP laws and addressing emerging challenges in areas such as biotechnology and digital innovation.

Some Things Cannot Be Legislated, Robert M. Sherwood

Cardozo Journal of International and Comparative Law

The article argues that international intellectual property (IP) laws have limited effectiveness in developing countries without local support and robust institutional frameworks. It emphasizes that developing nations must recognize the role of IP in fostering economic growth and that judicial systems are critical in enforcing IP rights effectively.

Industry Strategies For Intellectual Property And Trade: The Quest For Trips, And Post-Trips Strategies, Susan K. Sell

Cardozo Journal of International and Comparative Law

The article examines the origins, negotiation, and post-implementation strategies of the TRIPS Agreement, emphasizing the significant role of U.S. corporate interests in shaping this global intellectual property regime. It highlights how industries leveraged political and legal mechanisms to enforce TRIPS, while also addressing emerging challenges and opposition, particularly concerning public health and biotechnology.

Institutions And Elites: Property, Contract, The State, And Rights In Information In The Global Economy, Paul B. Stephan

Cardozo Journal of International and Comparative Law

The article critiques the increasing reliance on international institutions for harmonizing intellectual property rights, arguing that while such institutions provide a framework for addressing the challenges of the information revolution and globalization, they may not be the optimal solution. It explores alternatives, including the development of an international common law through national courts and the potential benefits of local lawmaking and competition among jurisdictions. The author advocates for a structure that allows local autonomy in intellectual property regulation to better allocate rights in valuable information.

The Paradox Of Intellectual Property Lawmaking In The New Millennium: Universal Templates As Terms Of Surrender For Non-Industrial Nations; Piracy As An Offshoot, Assafa Endeshaw

Cardozo Journal of International and Comparative Law

The article contends that nonindustrial countries (nonICs) have lost their role in shaping intellectual property (IP) laws, leading to the imposition of IP frameworks that often conflict with their economic and cultural needs. It argues that piracy in nonICs is not merely illegal activity but a consequence of their inability to tailor IP laws to their own development. The article critiques TRIPS for imposing Western IP standards on nonICs, which it views as a form of imperialism, and suggests that nonICs should adopt modified liability principles to foster innovation while addressing issues like access to essential goods such as medicines.

"Democratizing" Globalization: Practicing The Policies Of Cultural Inclusion, Doris Estelle Long

Cardozo Journal of International and Comparative Law

The article examines the evolving relationship between culture and intellectual property in the context of globalization, arguing that the current international harmonization process under the TRIPS Agreement is coercive and undemocratic, disproportionately favoring developed countries. It advocates for a more inclusive and balanced approach to harmonization that considers the diverse needs of developing countries and ensures equitable protection of intellectual property while preserving cultural and public domain interests.

Knowledge-Economy Ilites, The International Law Of Intellectual Property And Trade, And Economic Development, Michael P. Ryan

Cardozo Journal of International and Comparative Law

The article challenges the simplistic view of the TRIPS Agreement as a tool solely for corporate power, emphasizing instead the agency and strategic choices of developing countries in shaping intellectual property (IP) policies to their economic benefit. It highlights the complexity of IP laws, including trademarks, patents, and copyrights, and their varying acceptance and impact in developing nations. The analysis underscores the importance of understanding sector-specific dynamics and the role of international organizations in promoting IP standards, ultimately advocating for a nuanced approach to IP policies that align with local development goals and global economic integration.

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

World Trade Intellectual Property And The Global Élites: An Introduction, Peter K. Yu

Cardozo Journal of International and Comparative Law

This introduction examines the shift in intellectual property (IP) lawmaking from domestic governance to international frameworks, particularly through the World Trade Organization (WTO). While international lawmaking promotes harmonization and prevents regulatory races to the bottom, it often prioritizes the interests of developed nations and multinational corporations, potentially undermining the ability of less developed countries to tailor IP systems to their socio-economic needs. The introduction highlights concerns about the exclusion of key issues like consumer rights, cultural diversity, and human rights, as well as the undemocratic nature of global institutions.

Le Droit De Faire Jouer La Radio En Public, Ou La Petite Histoire D'Une Drôle D'Exemption, René Pépin

Canadian Journal of Law and Technology

L’article 69 de la loi canadienne sur le droit d’auteur prévoit qu’aucun montant n’est exigible d’une personne qui utilise en public un appareil radio, pourvu que ce soit fait dans un endroit, tel un commerce ou un restaurant, où le public est invité à se rendre sans qu’il lui soit chargé un prix d’entrée. Plusieurs pays ont une disposition semblable dans leur législation en matière de droit d’auteur. Cela évite que les détenteurs de droits d’auteur sur des pièces musicales, ou les compagnies de disques, prétendent que le propriétaire de l’appareil radio se trouve à «représenter publiquement» ou à «exécuter …

Litoral: A New Form Of Defamation Consciousness, Kim Von Arx

Canadian Journal of Law and Technology

With the Internet, quickly becoming ubiquitous, the question arises: how does the Internet, and more specifi- cally computer-mediated-communication (CMC), affect people’s lives?

This paper will explore CMC in the Western world as an instance of Walter J. Ong’s notion of secondary orality. It will seek to determine whether the proposed shift in communicative and social consciousness elimi- nates the need for the common law distinction between libel and slander in the online communication environ- ment. The paper is divided into three parts. In the first section, the elements of primary orality and the shift of consciousness from a primary oral …