Intellectual Property Law Commons^™

Tuning The Obviousness Inquiry After Ksr, Mark D. Janis

Washington Journal of Law, Technology & Arts

One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …

The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes

Articles

No abstract provided.

Unblocked Future: Why Gene Patents Won't Hinder Whole Genome Sequencing And Personalized Medicine, W. Nicholson Price Ii

Cardozo Law Review

Whole-genome sequencing has been hailed as the crucial next step in personalized medicine. It has also been described as likely violating hundreds - if not thousands - of pre-existing patents on individual genes. These claims of patent infringement, however, are usually made without detailed analysis. Instead of stating that infringement definitely occurs, or in what circumstances it occurs, the discussion of whole-genome sequencing mentions that some claims may be typically infringed, but some may be invalid, and leaves the matter there. This Article seeks to provide a detailed analysis of the ways that whole-genome sequencing may infringe extant gene patents, …

Comparative Advertising In Argentine Law, Pablo Palazzi

Fordham Intellectual Property, Media and Entertainment Law Journal

The author analyzes the evolution of comparative advertising in Argentina under the laws of trademark and unfair competition.

Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden

Washington Journal of Law, Technology & Arts

For decades, the relationship between the U.S. Court of Appeals for the Federal Circuit and patent law’s doctrine of inequitable conduct has resembled that between Shakespeare’s Prince Hal and John Falstaff. The former recognizes the excess, the deservedly ill repute, even the at least occasional wickedness of the latter, but cannot tear away from his close companion. Likewise, for decades, Federal Circuit judges have criticized the excesses of the defense of inequitable conduct, which can render a patent unenforceable as a result of misrepresentation or nondisclosure to the U.S. Patent and Trademark Office. Nevertheless, U.S. patent law remains wedded to …

Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve

Washington Journal of Law, Technology & Arts

Geographic indicators—trademarks that use a place name to indicate goods or services—are now theoretically easier to register, even if the good or service does not actually come from that place. This shift is a result of three cases, two authored by Chief Judge Randall R. Rader of the Federal Circuit Court of Appeals (California Innovations and Les Halles), and one where he served on the panel (Spirits International). These cases made it more difficult for a trademark examiner to reject an application for a primarily geographically deceptively misdescriptive mark by adding a materiality requirement. However, raising the bar was not …

A Proposal To Expand The Religious Services Exemption Under The Copyright Act, Kevin M. Lemley

University of Arkansas at Little Rock Law Review

This article focuses on the religious services exemption to the Copyright Act. The religious services exemption is one of many exemptions that permit certain types of use without first obtaining permission from the copyright owner, or proving fair use. This article argues that the religious services exemption should be expanded to cover any work used in the course of services as well as the recording, broadcast, and transmission of the services.

The first part of this article analyzes the existing religious services exemption under the Copyright Act to define the bounds that uses fall under the exemption. The article then …

Dmca Safe Harbors And The Future Of New Digital Music Sharing Platforms, Jing Xu

Duke Law & Technology Review

SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their original tracks and remixes. Unfortunately, it is also a platform that lends itself to widespread copyright infringement. Looking toward potential litigation, several factors ought to be considered by SoundCloud and other similar providers. The Viacom v. YouTube case, decided in the Southern District of New York and now currently on appeal in the Second Circuit, sheds light on the potential liability service providers …

A Short History Of "Intellectual Property" In Relation To Copyright, Justin Hughes

Cardozo Law Review

No abstract provided.

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Faculty Publications

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …

Reviewing The (Shrinking) Principle Of Trademark Exhaustion In The European Union (Ten Years Later), Irene Calboli

Research Collection Yong Pung How School Of Law

Ten years ago, I published an article in the Marquette Intellectual Property Law Review titled “Trademark Exhaustion in the European Union: Community-Wide or International? The Saga Continues.” In that article, I described the development of the principle of trademark exhaustion in the European Union (EU) and analyzed the interplay among trademark protection, trademark territoriality, and the treatment of the parallel importation of gray market products—unauthorized genuine goods imported from foreign countries—under Article 7 of the Trademark Directive (Article 7). In this Essay, I continue to explore, ten years after my 2002 article, the development of the principle of trademark exhaustion …

Book Review Of Citizens And E-Government: Evaluating Policy And Management, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Costly Intellectual Property, David Fagundes, Jonathan S. Masur

Vanderbilt Law Review

Patents and copyrights originate from the same constitutional source of law,1 and for this reason they are in some respects similar. Patent and copyright law alike extend to inventors and authors exclusive rights over the fruits of their intellectual labors, enabling owners to extract value from intangible goods that would otherwise not be profitable. Both systems are premised on a utilitarian bargain, allowing inventors and authors to have socially costly monopoly interests in their inventions and works in order to encourage socially beneficial innovative and artistic production. And patents and copyrights both last only for finite periods, in contrast to …

Gene Patents No More? Deciphering The Meaning Of Prometheus, Fazal Khan, Lindsay Kessler

Scholarly Works

When Congress enacted the United States Patent Act in 1952, it specified that patentable subject matter included anything “under the sun that is made by man.” Three decades ago the United States Patent and Trademark Office (USPTO) issued the first gene patent and ushered in a brave new gold rush. Some genes are associated with specific diseases, so being able to identify these sequences is an essential first step for developing genomic diagnostic tests and therapies. The problem with gene patents is that they allow modern-day prospectors to cordon off access to naturally occurring DNA sequences and exclude others from …

The Riaa V. The People: The Recording Industry's Misguided Attempt To Use The Legal System To Save Their Business Model, John A. Fedock

Pepperdine Law Review

No abstract provided.

Patent Insurance/Collective Approaches To Managing Patent Risk, Colleen Chien

Faculty Publications

No abstract provided.

The Middle Kingdom And The Intellectual Property World, Peter K. Yu

Faculty Scholarship

Delivered as the keynote opening address at the Symposium on "China's Role in Regulating the Global Information Economy," this Article scrutinizes China's participation in the international intellectual property regime and its role in both the WTO and WIPO. It begins by discussing China's engagement with international intellectual property norms before its accession to the WTO in December 2001. It points out that China is not a "norm breaker" one typically infers from its disappointing record of intellectual property protection. Instead, the country should be viewed as a "norm taker," having accepted most of the WIPO-administered intellectual property treaties available for …

A Philosophical Analysis Of Intellectual Property: In Defense Of Instrumentalism, Michael A. Kanning

USF Tampa Graduate Theses and Dissertations

This thesis argues in favor of an instrumental approach to Intellectual Property (IP). I begin by reviewing justifications for IP that have been offered in recent literature, including Lockean labor theory, Hegelian personality theory, Kantian property theory and utilitarianism. Upon a close and careful analysis, I argue that none of these justifications suffice to ground contemporary IP practice. I review some recent works that offer `pluralist' justifications for IP, which draw from multiple theories in order to account for the diverse field of IP-related laws and practices in existence. I argue that these pluralist theories are also insufficient, because there …

“Less Is More”: New Property Paradigm In The Information Age?, Aarthi S. Anand

Duke Law & Technology Review

Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this evidence in time to limit expansive copyright. United States law, however, already protects information products under copyright. Hence, this counterfactual evidence that judges request cannot be generated in the United States. In response to the demand for data, American legal scholars have attempted to mine evidence from open software and other non-commercial endeavors on the Internet. However, these endeavors have been dismissed as exceptions …

A Copyright Law For A Social Species, Robert E. Suggs

Faculty Scholarship

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry.

The expressive culture that copyright protects …

Open Source Innovation, Patent Injunctions, And The Public Interest, James Boyle

Duke Law & Technology Review

This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with …

Building Universal Digital Libraries: An Agenda For Copyright Reform, Hannibal Travis

Pepperdine Law Review

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

A Secret In One District Is No Secret In Another: The Cases Of Merrill Lynch And Preliminary Injunctions Under The Faa , Anahit Tagvoryan

Pepperdine Dispute Resolution Law Journal

Public policy favors protecting intellectual property in arbitration, and both Congress and the courts support, and in fact encourage, arbitration of intellectual property disputes. This support stems from the history of favoritism toward private arbitration agreements and other alternative dispute resolution in lieu of judicial adjudication. Because intellectual property disputes often involve commercial parties transacting business across state lines, arbitration is governed by the Federal Arbitration Act (FAA). Availability of provisional remedies such as injunctions has also proven effective in the area of intellectual property disputes. However, unlike the option and process of private arbitration where there is little to …

I Am The Walrus. - No. I Am!: Can Paul Mccartney Transpose The Ubiquitous "Lennon/Mccartney" Songwriting Credit To Read "Mccartney/Lennon?" An Exploration Of The Surviving Beatle's Attempt To Re-Write Music Lore, As It Pertains To The Bundle Of Intellectual Property Rights, Ezra D. Landes

Pepperdine Law Review

No abstract provided.

Overview Of Data Management Planning Tools, Michele Reilly

Lecture Series on E-Science

These Data Management Plans are more comprehensive and complex than in the past. Libraries around the nation are trying to put together tools to help researchers write plans that conform to the new requirements. This session will look at some of these tools.

What's In A Name? Fred Goldman's Quest To Acquire O.J. Simpson's Right Of Publicity And The Suit's Implications For Celebrities, Laura Hock

Pepperdine Law Review

No abstract provided.

Copyright Arbitration Royalty Panels And The Webcasting Controversy: The Antithesis Of Good Alternative Dispute Resolution, Jeremy Delibero

Pepperdine Dispute Resolution Law Journal

Music is becoming increasingly synonymous with big business and corporate influence. The advent of Internet radio and streaming webcasts are simply one example of this shift. Organizations such as the Radio Industry Association of America ("RIAA") have discovered a new way to receive royalties from the performance of musical works, and have fought vigorously to obtain favorable rates to achieve the maximum profit. On the other hand, small webcasters have fought equally hard to avoid these large rates. Although arguments for each side are equally persuasive, neither is persuasive enough to force a compromise. In attempting to solve these disputes, …

The Devil Wears Prado: A Look At The Design Piracy Prohibition Act And The Extension Of Copyright Protection To The World Of Fashion, Lynsey Blackmon

Pepperdine Law Review

No abstract provided.

Will Gene Patents Derail The Next-Generation Of Genetic Technologies?: A Reassessment Of The Evidence Suggests Not, Christopher M. Holman

UMKC Law Review

Judge Bryson recently asserted in Association for Molecular Pathology v. US Patent and Trademark Office (dissenting-in-part) that human gene patents "present a significant obstacle to the next generation of innovation in genetic medicine — multiplex tests and whole-genome sequencing." His concern over the impact of gene patents on genetic testing, which coincides with his position that certain gene patents should be declared patent ineligible, reflects a widely held misperception that 20% of human genes are patented in a manner that would necessarily result in infringement by whole genome sequencing and other forms of genetic testing. In fact, the myth that …

From Betamax To Youtube: How Sony Corporation Of America V. Universal City Studios, Inc. Could Still Be A Standard For New Technology, Veronica Corsaro

Federal Communications Law Journal

Internet technological innovations, particularly the development of Peer-to-Peer ("P2P") networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while usergenerated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act's section 512 "safe harbor" provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will …