Intellectual Property Law Commons^™

Synthetic Biology: The Intellectual Property Puzzle, Arti K. Rai, Sapna Kumar

Faculty Scholarship

Synthetic biology, which operates at the intersection of biotechnology and information technology, has the potential to raise, in a particularly acute manner, the intellectual property problems that exist in both fields. A preliminary patent landscape reveals problematic foundational patents that could, if licensed and enforced inappropriately, impede the potential of the technology. The landscape also reveals a proliferation of patents on basic synthetic biology "parts" that could create transaction cost heavy patent thickets. Both foundational patents and patent thickets are likely to be particularly problematic to the extent they read on standards that synthetic biologists would like to establish. Synthetic …

Mertonianism Unbound?: Imagining Free, Decentralized Access To Most Cultural And Scientific Material, James Boyle

Faculty Scholarship

No abstract provided.

The Demise And Rebirth Of Plant Variety Protection: A Comment On Technological Change And The Design Of Plant Variety Protection Regimes, Laurence R. Helfer

Faculty Scholarship

In 'Technological Change and the Design of Plant Variety Protection Regimes', Mark Janis and Stephen Smith make two novel and provocative claims. They first argue that the legal regime for protecting new plant varieties has become hopelessly outdated in light of recent changes in technology. They next assert that the fate of the plant variety protection (PVP) system illustrates a broader and more disturbing phenomenon in intellectual property law: the potential for sui generis, industry-specific intellectual property regimes to become increasingly ineffective over time. In this brief essay, I offer three points to amplify the authors' contributions and highlight the …

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

Open Source And Private Ordering: A Commentary On Dusollier, Arti K. Rai

Faculty Scholarship

No abstract provided.

Knowledge Commons: The Case Of The Biopharmaceutical Industry, Arti K. Rai

Faculty Scholarship

No abstract provided.

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Faculty Scholarship

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …

Introduction, Joel R. Reidenberg

Faculty Scholarship

As a leader in the publication of legal scholarship, the Fordham Intellectual Property, Media and Entertainment Law Journal sought the insights of internationally renowned scholars on critical problems in intellectual property law. In this focused issue, five top scholars tackle timely questions.

The Rule Of Intellectual Property Law In The Internet Economy, Joel R. Reidenberg

Faculty Scholarship

This article argues that the technological attacks on intellectual property are a movement against democratically chosen intellectual property rules. They form a basic challenge to the rule of law and to the control of the rules wired into the network. In making this argument, the Article first maintains that intellectual property rights have an important public function in democracy in that they mark political, economic, and social boundaries. Next, the Article shows that the public law, as enacted by governments, has reallocated intellectual property rights to adapt to the information economy. While many aspects of this new allocation of rights …

Big Entertainment Needs A Sequel To The Highly Anticipated Flop: Mgm V. Grokster, Anuj Desai

Georgia Law Review

The entertainmentindustry's attempts to police copyright infringement by targeting technologies that enable copying of protected works remain unworkable. More than twenty years ago, Hollywood initiated this strategy when it sued Sony, claiming users copied protected broadcast TV shows using Sony's Betamax, thus branding Sony a contributory infringer. The Supreme Court, however, rejected this argument in Sony Corp. of Am. v. Universal City Studios, Inc. and found that Sony was not liable as it had no knowledge of the infringement and its product was capable of substantialnoninfringing uses. The Sony doctrine was revived in the late 1990s when it was successfully …

Collateralizing Intellectual Property, Xuan-Thao Nguyen

Georgia Law Review

This Article argues that the process of collateralization of intellectual property lacks transparency.Consequently, the current Article 9 of the Uniform Commercial Code may unfairly advance secured creditor's rights at the expense of intellectual property creators-such as authors and inventors-who are the debtors, and ultimately at the expense of society as a whole. The hidden costs of using intellectual property rights as collateral in secured transactions may prevent intellectual property creators from creating future works based on their early creations. This Article identifies and critiques the collateralization of intellectual property,revealing the complexity of intersecting secured transaction law, namely Article 9 of …

Confronting Myths And Myopia On The Road From Doha, Daniel R. Cahoy

Georgia Law Review

Recent patent compulsory licenses issued by Thailand and Brazil have focused attention on this property rights safety valve as a means for balancing access and innovation in essential medicines. While derided in some quarters,many view these measures as a legitimate exercise of the flexibilities that exist in international intellectual property agreements, recently enhanced as a result of the WTO's Doha round of trade negotiations. But the increasing willingness to utilize patent compulsory licenses faces a troubled future: the international framework is dangerously ambiguous and significantly misaligned. Chief among the concerns is the level of compensation owed to a patent owner …

Contractual Expansion Of The Scope Of Patent Infringement Through Field-Of-Use Licensing, Mark R. Patterson

Faculty Scholarship

Patentees sometimes license their inventions through field-of-use licenses, which permit licensees to use the inventions, but only in specified ways. Field-of-use licensing is often procompetitive, because the ability to provide different licensing terms for different users can encourage broader licensing of inventions. But in recent United States cases, the Federal Circuit Court of Appeals and lower courts have upheld field-of-use licenses prohibiting activities that licensees would otherwise have been permitted by patent law, such as the repair and resale of patented products. The recent cases rely on the Federal Circuit's decision in Mallinckrodt, Inc. v. Medipart, Inc., where the court …

Domain Names, Trademarks, And The First Amendment: Searching For Meaningful Boundaries, Margreth Barrett

Faculty Scholarship

No abstract provided.

Defending Artistry By Deleting "Dead Capital:" Sony, Grokster, And The Supreme Court's Lost Opportunity To Eradicate The "Substantial Non-Infringing Use" Doctrine, Joshua E. Carpenter

Vanderbilt Journal of Entertainment & Technology Law

The administration of copyright law manages the trade-off between the benefits derived from encouraging the creation of works and artistic protection and the cost of restricting access. Copyright law cannot work without a strong legal system that strictly reads the rights granted to those seeking the law's protection and against those seeking to find creative ways to avert the law's protections. Ironically, certain technology providers want protection against others' infringement on their technological creations, but they accept that their businesses base themselves on eroding the value of another's hard work and innovation. Sony allows technology companies to hide behind the …

International Distributions: Divergence Of Co-Ownership Laws, Goldie Gabriel

Vanderbilt Journal of Entertainment & Technology Law

United States copyrighted works are exploited internationally--or at least artists hope for them to be exploited internationally. The Berne Convention ("Berne"),' to which the U.S. became a member on March 1, 1989, is the primary regulator of international copyright issues. Berne's purpose is to "protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works." To achieve this purpose, Berne mandates that its parties provide equal treatment and minimum levels of protection to members of the Berne Union. Berne does not, however, require new laws to provide those protections. Instead, Berne …

A Reason For Musicians To Fret: Copyright Infringement In Online Guitar Tablature, Laura E. Gary

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note will specifically address guitar tablature and how it differs from more traditional methods of copying musical works. Part I will also discuss derivative works and fair use in detail, setting out the statutory provisions and the relevant case law establishing and analyzing both these claims. Part II addresses the lack of legal precedent for copyright infringement in guitar tabs and devises a possible solution to the question of whether or not guitar tabs infringe copyrighted musical works. Specifically, this note concludes that the appropriate answer to that question is that guitar tabs are infringing derivative …

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Vanderbilt Journal of Entertainment & Technology Law

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

The Patent Office Is Promoting Shocking New Tax Loopholes—Should The Empire Strike Back?, William A. Drennan

Oklahoma Law Review

No abstract provided.

Rembrandts In The Research Lab: Why Universities Should Take A Lesson From Big Business To Increase Innovation, Kristen Jakobsen Osenga

Law Faculty Publications

In this Article, I argue that patents, if obtained and exploited strategically, can have a beneficial effect on university research. I will describe the barriers to university participation in the patent arena-that is, lack of money, lack of knowledge, lack of infrastructure, and cultural concerns-and explain, with reference to business, how and why universities need to overcome these barriers. By breaking down these barriers and ably exploiting their intellectual property, I argue that the obstacles to university research will be lessened, resulting in increased research and innovation. I further provide a primer to provide university administrators, technology transfer offices, and …

Ants, Elephant Guns, And Statutory Subject Matter, Kristen Jakobsen Osenga

Law Faculty Publications

Questions about whether software qualifies for patent protection are becoming increasingly more prevalent, despite the fact the issue seemed settled. The Supreme Court has indicated its interest in the topic and the U.S. Patent and Trademark Office-which had previously been liberally issuing patents in the computer-related arts-now appears to be leading the groundswell against the subject-matter eligibility of these inventions, rejecting an increasing number of applications in this area for lack of statutory subject matter. Despite the broad definitions of patentable subject matter provided by the Constitution, Patent Act, and Supreme Court, the Patent Office has grafted various additional requirements …

Nonobviousness And The Federal Circuit: An Empirical Analysis Of Recent Case Law, Christopher A. Cotropia

Law Faculty Publications

This Article provides such an empirical study. The study examines all Federal Circuit cases over a four-year period considering the nonobviousness of a patent claim. Appeals from both patent infringement cases before district courts and pending patent applications and interferences before the United States Patent and Trademark Office (USPTO) are investigated. The study looks at the data in two levels of detail.

The Freedom Of Information Act And Trade Secrets, Roger V. Skalbeck

Law Faculty Publications

This article details a case illustration where federal law intersects with trade secret questions, a subject normally governed by state laws.

Secrecy And Access In An Innovation Intensive Economy: Reordering Information Privileges In Environmental, Health, And Safety Law, Mary L. Lyndon

University of Colorado Law Review

This article examines the law concerned with access to information that is commercially valuable when it is kept secret but is also essential to environmental, health, and safety (EHS) risk evaluation. EHS law stimulates sustainable economic activity, including new technologies, and thus complements intellectual property law. Access to EHS information is essential to risk management, but current disclosure obligations are unclear, as the law is a patchwork of familiar but ill-fitting concepts and entitlements. The article discusses the current law that affects disclosure, taking into account recent changes in the technological and economic landscape. It also describes the contrasting uses …

The Revision Of The Colorado Trademark Registration Statute, Arthur H. Travers

Publications

No abstract provided.

Should Property Or Liability Rules Govern Information?, Mark A. Lemley, Philip J. Weiser

Publications

This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead …

Patents On Legal Methods? No Way!, Andrew A. Schwartz

Publications

An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.