Intellectual Property Law Commons^™

Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich

Faculty Scholarship

This Article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …

Rights, Not Gifts, For Trusted Intermediaries, Margaret Ann Wilkinson

Law Presentations

No abstract provided.

Mark Twain’S Autobiography: In The Public Domain Before The Public’Shands?, Mark Tratos

Intellectual Property Brief

No abstract provided.

The Government Is Wrong: The Case For Human Gene Patents And Thegenomics Revolution, Jonathan Stroud

Intellectual Property Brief

No abstract provided.

Chanel Avoids Genericide By Taking Its Trademark Seriously, Ashley Kobi

Intellectual Property Brief

No abstract provided.

The Absence Of Common Sense From The Copyright Act’S Treatment Ofsoftware And The First Sale Doctrine, James Lafave

Intellectual Property Brief

No abstract provided.

Reverse Engineering: Exploitation For Benefit Of All, Daniel Lee

Intellectual Property Brief

No abstract provided.

U.S. Senators Continue War On Internet With “Online Infringement” Bill, Ashlee Hodge

Intellectual Property Brief

No abstract provided.

Avenues To Reduce Total Patent Pendency In Order To Boost The United States Economy, Alexandria Yasmin Bromell

Intellectual Property Brief

No abstract provided.

Reinforcing The Tower Of Babel: The Impact Of Copyright Law On Fansubbing, Latoya D. Rembert-Lang

Intellectual Property Brief

No abstract provided.

Special 301 And Access To Medicine In The Obama Administration, Sean M. Flynn

Intellectual Property Brief

No abstract provided.

The Greatest Book You Will Never Read: Public Access Rights And The Orphan Works Dilemma, Libby Greismann

Duke Law & Technology Review

Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of both the copyright holder and the public, which vest with the fixation of the work. However, as Congressional action has strengthened copyright protection, the rights of the public have been narrowed. Orphan works – works to which the copyright owner cannot be located or identified – present a unique problem, in that achieving free access and use of the works is often impossible. …

The Cryptopticon: The Legal, Ethical, And Intellectual Implications Of "Big Data"

Stanley H. Mervis Lecture

No abstract provided.

Intellectual Property And Human Rights In The Nonmultilateral Era, Peter K. Yu

Florida Law Review

In the past decade, countries have actively established bilateral, plurilateral, and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era of nonmultilateralism that warrants a reexamination of the complex interrelationship between intellectual property and human rights. This Article closely examines the human rights impact of the intellectual property provisions in TRIPS-plus nonmultilateral agreements. It begins by outlining the challenges inherent in any analysis of the …

From Trademarks To Brands, Devin R. Desai

Florida Law Review

The business world has moved from using trademarks—simple symbols identifying products—to brands—rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. These changes are the future of commerce. But trademark law has not kept pace with either.

This Article argues that because brands are governed by trademark law, the full realization of brands as information resources is hindered. Current trademark law is blinkered and confused, and …

Is There Ever A Reason To Know? A Comparison Of The Contributory Liability "Knowledge" Standard For Websites Hosting Infringed Trademarked Content Versus Infringed Copyrighted Content, Rachel N. Agress

The Journal of Business, Entrepreneurship & the Law

The doctrines of contributory copyright liability and contributory trademark liability are both based on the confluence of basic tort liability and the policy goal of encouraging innovation and commerce. Because the two concepts sometimes conflict, courts have struggled to create a comprehensive body of law to reach a reconciliation. The doctrine of contributory copyright liability evolved through a rich body of case law that was subsequently supplemented by the legislatively enacted Digital Millennium Copyright Act (DMCA). In contrast, the doctrine of contributory trademark liability is a purely common law doctrine and has not witnessed legislative intervention. This article posits that …

Printing The Impossible Triangle: The Copyright Implications Of Three-Dimensional Printing, Brian Rideout

The Journal of Business, Entrepreneurship & the Law

Three-dimensional printing (3D printing), which allows users to digitize and replicate objects, is emerging as the next potentially disruptive technology. It is now possible to “print” intricate objects from furniture to food to human organs. Because 3D printing relies on computer-based blueprints in order to create physical objects, digital copyright infringement can now impact the physical world. The first example occurred in February 2011, when the world's first Digital Millennium Copyright Act (DMCA) takedown notice for a 3D printed object was sent. This article describes how 3D printing works in relation to copyright law, first by discussing this DMCA takedown …

A New Look For The Fashion Industry: Redesigning Copyright Law With The Innovative Design Protection And Piracy Protection Act (Idpppa), Brittany West

The Journal of Business, Entrepreneurship & the Law

Introduced in Congress in August 2010, the Innovative Design Protection and Piracy Prevention Act (IDPPPA) would amend 17 U.S.C. § 1301 to extend copyright protection to unique, distinguishable, non-trivial, and non-utilitarian fashion designs. The fashion industry in the United States is currently a $200 billion industry which is afforded limited intellectual property protection compared to foreign markets. This article explores the applicability of the existing Copyright Act to fashion designs and argues that the IDPPPA takes a narrow approach to eliminate ambiguity present in former bills attempting to amend copyright law. The IDPPPA would incentivize innovation, the ultimate goal of …

Both A License And A Sale: How To Reconcile Self-Replicating Technology With Patent Exhaustion, Douglas Fretty

The Journal of Business, Entrepreneurship & the Law

Too many authorities view the transfer of patented self-replicating technology (SRT) as either a pure license or a pure sale. If a pure license exists, the patentee can impose post-transfer restrictions on the product's use, frustrating the policy goals of limited monopoly and free alienability of chattels. If a pure sale is triggered, however, the patentee loses all rights through patent exhaustion, allowing the purchaser to replicate the chattel at will. Sensitive to this latter argument, several courts have enforced Monsanto Company's “bag tag” seed licenses, which require Monsanto's farmer customers to destroy all second-generation seed. Urging a middle path, …

It Looks Like A Sale; It Quacks Like A Sale…But It's Not? An Argument For The Application Of The Duck Test In A Digital First Sale Doctrine, Matthew J. Turchyn

The Journal of Business, Entrepreneurship & the Law

What are you purchasing when you buy a print of Picasso's Guernica? The piece of paper it is printed on, several courts have replied. In these instances, courts have created a pragmatic legal fiction that allows for the transfer of a copy of a work while the author retains his or her rights and privileges under copyright law. Therefore, the purchaser of the Guernica print could resell his or her legally created print of the painting on the secondary market. This is the essence of the First Sale Doctrine of the U.S. Copyright Act. This practice breaks down, however, when …

Copyrights In The Stream: The Battle On Webcasting, Eldar Haber

Santa Clara High Technology Law Journal

The Internet threatens many right holders who consistently battle against technologies that enable people to use their copyrighted materials without their consent. While copyright holders have succeeded in some cases, their main battle against peer-to-peer (P2P) file-sharing has yet to be resolved. Another technology that threatens right holders’ business models, especially in the film industry, is the distribution of their content freely via webcasting. Although right holders have paid little attention to webcasting as they continue their campaign against P2P file-sharing, it poses similar threats and presents the likely possibility of a future copyright battle.

This Article examines copyright and …

Measuring Intellectual Property 'Strength' And Effects: An Assessment Of Patent Scoring Systems And Causality, W. Lesser

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

No More Format Disputes: Are Reality Television Formats The Proper Subject Of Federal Copyright Protection?, Jessica E. Bergman

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor

Articles

From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And …

In The Language Of Pictures: How Copyright Law Fails To Adequately Account For Photography, Teresa M. Bruce

West Virginia Law Review

No abstract provided.

Illuminating Innovation: From Patent Racing To Patent War, Lea Shaver

Washington and Lee Law Review

Patent law assumes that stronger protection promotes innovation, yet empirical evidence to test this “innovation hypothesis” is lacking. This Article argues that historical case studies hold unique promise to provide an empirical foundation for modern patent policy. Specifically, this Article uses the history of patents surrounding the light bulb to examine a recently articulated theory of “patent racing” as a justification for patent protection. Thomas Edison’s experience confirms that Mark Lemley’s racing model has substantial descriptive merit. Yet this case study also reveals the limits of the patent racing model. Looking past the initial finish line of patent filings to …

A Case Against The Entire Market Value Rule, Anthony D. Raucci

Washington and Lee Law Review

No abstract provided.

Workshop On Research And Resource Commons In Scientific Research: Final Report, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

In November of 2011, the Washington College of Law at American University convened and hosted a two-day workshop in collaboration with the Creative Commons to develop a strategy for promoting a commons or scientific research and related resources. The workshop brought together interested stakeholders from across the scientific research enterprise: scientists, administrators, librarians, publishers, societies, technologists, lawyers, policy makers, students, funders, and Open Science advocates, including both U.S. and international representatives. This diverse group discussed the current state of policy and technology as it relates to a scientific research commons, and identified key opportunities and challenges, as well as next …

Finding Invention, Oskar Liivak

Cornell Law Faculty Publications

One of the biggest problems plaguing modern patent law is its inability to provide predictable and clear exclusive rights. We would improve clarity by simply following the patent statute and extending exclusion only to "the patented invention." That suggestion, as reasonable as it may sound, is actually quite radical to the dominant patent law orthodoxy. It is not even clear under the dominant patent law orthodoxy what it would mean to limit patent scope to the invention, but it is generally presumed that it must lead to unacceptably narrow patents. Thus, even if it provides clarity, the invention is thought …

Objections To The Proposed Access Copyright Post-Secondary Tariff And Its Progeny Licenses: A Working Paper, Samuel Trosow, Scott Armstrong, Brent Harasym

FIMS Publications

On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.

Access …