Intellectual Property Law Commons^™

The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger

Scholarly Works

The U.S. Court of Appeals for the Federal Circuit, in its continuing effort to develop a patent claim construction jurisprudence that yields predictable results, has turned to dictionaries, encyclopedias, and similar sources with increasing frequency. This paper explores, from both an empirical and a normative perspective, the Federal Circuit's effort to shift claim construction to a dictionary-based approach. In the empirical part, we present data showing that the Federal Circuit has, since its own in banc Markman decision in April 1995, used reference works such as dictionaries to construe claim terms with steadily increasing frequency. In addition, and contrary to …

Television: Peer-To-Peer’S Next Challenger, D. Branch Furtado

Duke Law & Technology Review

The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing "Betamax" decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology.

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

ExpressO

No abstract provided.

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer

ExpressO

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with …

God In The Machine: A New Structural Analysis Of Copyright’S Fair Use Doctrine, Matthew J. Sag

ExpressO

This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright. I show that fair use has actually enabled the expansion of copyright protection, through its structural role.

The structural role of fair use has two aspects. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author’s rights within those bounds. Second, because …

Material Vulnerabilities: Data Privacy, Corporate Information Security And Securities Regulation, Andrea M. Matwyshyn

ExpressO

This article undertakes a normative and empirical legal inquiry into the manner information security vulnerabilities are being addressed through law and in the marketplace. Specifically, this article questions the current legislative paradigm for information security regulation by presenting a critique grounded in information security and cryptography theory. Consequently, this article advocates shifting our regulatory approach to a process-based security paradigm that focuses on improving security of our system as a whole. Finally, this article argues that in order to accomplish this shift with least disruption to current legal and economic processes, expanding an existing set of well-functioning legal structures is …

Why "Bad" Patents Survive In The Market And How Should We Change?--The Private And Social Costs Of Patents, Jay P. Kesan

ExpressO

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We …

Willful Infringement And The Evidentiary Value Of Opinion Letters After Knorr–Bremse V. Dana, Joshua Stowell

Duke Law & Technology Review

Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the …

The Market For Private Dispute Resolution Services -- An Empirical Re-Assessment Of Icann-Udrp Performance, Jay P. Kesan

ExpressO

This paper presents the first, thorough empirical study of the performance of UDRP providers. We analyze the decisions of the complainants in deciding to send their claim to a particular provider and showing that the duration of the dispute resolution services is at least as important as bias in determining the initial selection of providers. Our results show that the emphasis of theoretical and empirical work, which has been exclusively concentrated around the effects of pro-complainant bias, is incomplete. We then use the duration of these cases as the main variable to measure the general efficiency of each provider. Among …

Innovation Policy In Telecommunications: Revisiting The Successes Of Guglielmo Marconi, John M. Williamson

Federal Communications Law Journal

Book Review: Signor Marconi's Magic Box: The Most Remarkable Invention of the 19th Century & the Amateur Inventor Whose Genius Sparked a Revolution, Gavin Weightman, Cambridge, Mass.: Da Capo Press, 2003, 312 pages.

A review of Gavin Weightman's Signor Marconi's Magic Box, Da Capo Press, 2003. An entertaining and informative biography of the inventor of applied wireless communications, this book also gives practical insight into the effect of patent policy on innovation. The Marconi story parallels the challenges faced by today's telecommunications innovators and offers a significant historical perspective relevant to present-day debates over the direction of innovation policy and …

Problems Of Anti-Circumvention Rules In The Dmca & More Heterogeneous Solutions, Yijun Tian

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Patents, Essential Medicines, And The Innovation Game, David W. Opderbeck

Vanderbilt Law Review

The once dusty arena of international patent law now hosts a life and death contest. Human rights activists claim patents restrict access to essential technologies in the developing world and skew research and development away from global health and welfare problems. Industrialized countries argue that innovation and development require strong patent protection. Both sides agree that much of the world lacks meaningful access to technologies that are basic to a healthy standard of living.

Current international patent rules strike an uneasy balance between these conflicting views about patents. The precarious nature of this balancing act is illustrated by the recent …

Leveraging Knowledge Assets: Can Law Reform Help?, Margaret Ann Wilkinson, Mark Perry

Law Publications

No abstract provided.

Knocking Out Knock-Offs: Effectuating The Criminalization Of Trafficking In Counterfeit Goods, Lauren D. Amendolara

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Authorship, Ownership , And Control: Balancing The Economicc And Artistic Issues Raised By The Martha Graham Copyright Case, Sharon Connelly

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Problems Of Anti-Circumvention Rules In The Dmca & More Heterogeneous Solutions, Yijun Tian

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Knocking Out Knock-Offs: Effectuating The Criminalization Of Trafficking In Counterfeit Goods, Lauren D. Amendolara

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Owns The Internet? Ownership As A Legal Basis For American Control Of The Internet, Markus Muller

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Broadcast Flag: It's Not Just Tv, Wendy Seltzer

Federal Communications Law Journal

No abstract provided.

Will Lessig Succeed In Challenging The Ctea, Post-Eldred, Matthew Dean Stratton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan

Federal Communications Law Journal

With the advent of digital TV, many homes in the U.S. are now on the cutting edge of what is likely to be a sea change in how this country watches TV. While these homes can now begin to enjoy the numerous benefits of the technology, regulators and industry experts are working to craft responses to problems, both actual and anticipated, that the technology creates. Mindful of the piracy issues that came with the popularity of digital file formats in the music industry, the FCC addressed piracy in the digital TV context by endorsing the use of "broadcast flags" on …

The Law Of Unintended Consequences: The Digital Millennium Copyright Act And Interoperability, Jacqueline Lipton

Washington and Lee Law Review

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent …

Patent Fences And Constitutional Fence Posts: Property Barriers To Pharmaceutical Importation, Daniel R. Cahoy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Authorship, Ownership , And Control: Balancing The Economicc And Artistic Issues Raised By The Martha Graham Copyright Case, Sharon Connelly

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Will Lessig Succeed In Challenging The Ctea, Post-Eldred, Matthew Dean Stratton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Patent Fences And Constitutional Fence Posts: Property Barriers To Pharmaceutical Importation, Daniel R. Cahoy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Owns The Internet? Ownership As A Legal Basis For American Control Of The Internet, Markus Muller

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Intellectual Property And The Information Ecosystem, Peter K. Yu

Faculty Scholarship

This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term intellectual property. It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term.

The second part focuses …

Keeping Score: The Struggle For Music Copyright, Michael W. Carroll

ExpressO

Inspired by the passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Although music publishers and recording companies are among the most aggressive advocates for strong copyright protection today, when copyright law was first invented in eighteenth-century England, music publishers resisted its extension to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was …

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.