Intellectual Property Law Commons^™

The Weak Aspects Of The Industrial Design Protection System In Indonesia, Cita Citrawinda Noerhadi

Indonesia Law Review

Industrial property is is being used by an increasing number of developing countries as an important tool of technological and economic development. Developing countries have also been made aware that it is in their best interest to establish national industrial property systems. Indonesia as a signatory member of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), Indonesia has enacted Law No. 31 of 2000 concerning Industrial Design on 20 December 2000. Since the enactment of Law No. 31 of 2000 several cases have occurred and been brought before the Commercial Court …

Lexmark Int'l, Inc. V. Static Control Components, Inc.: Brief Of Law Professors As Amici Curiae In Support Of Neither Side, Jessica Litman

Appellate Briefs

Amici are scholars at U.S. law schools whose research and teaching focus is trademark and advertising law. Amici seek consistent, manageable standards that effectuate Congress's intent to provide a remedy in Section 43(a)(1XB) of the Lanham Act for businesses against false and misleading statements in commercial advertising or promotion.

Advancing Ip Policy Through Conflict Of Laws Rules, Marketa Trimble

Boyd Briefs / Road Scholars

Prof. Marketa Trimble gave her presentation Advancing IP Policy through Conflict of Laws Rules at the IP Scholar Conference held August 8-9, 2013 at Cardozo School of Law.

How To Obtain Permission, United States Copyright Office

Copyright, Fair Use, Scholarly Communication, etc.

How to obtain permission to use or adapt a copyrighted work in the United States. One way to make sure your intended use of a copyrighted work is lawful is to obtain permission or a license from the copyright owner.

First step: Research copyright status

Next step: Contact copyright owner

Explaining The “Unpredictable”: An Empirical Analysis Of U.S. Patent Infringement Awards, Michael J. Mazzeo, Jonathan Hillel, Samantha Zyontz

Faculty Scholarship

Patent infringement awards are commonly thought to be unpredictable, which raises concerns that patents can lead to unjust enrichment and impede the progress of innovation. We investigate the unpredictability of patent damages by conducting a large-scale econometric analysis of award values. We begin by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. Using these data, we construct an econometric model that explains over 75% …

See No Evil: How The Supreme Court’S Decision In Global-Tech Appliances, Inc. V. Seb S.A. Further Muddles The Intent Element Of Induced Infringement, Jeremy Adler

Northwestern Journal of Technology and Intellectual Property

The Supreme Court in Global-Tech Appliances, Inc. v. SEB S.A. clarified the requisite intent for induced patent infringement when it applied the concept of willful blindness. This Article argues that the Court’s decision was misguided and complicates an already confused doctrine. The Article first explores inducement jurisprudence up to and including the Global-Tech decision, and then reviews the doctrine of willful blindness and its application in the criminal context. The Author then argues that using willful blindness in the patent context creates practical and theoretical difficulties that only deepen uncertainty for innovators who seek to avoid infringement liability.

Patent Claims Revisited, Dargaye Churnet

Northwestern Journal of Technology and Intellectual Property

This paper proposes that the most beneficial patent reform begins with claim drafting regulations. Part I serves as an introduction. Part II highlights the problems with the nation’s current patent system. This section discusses how each of these problems is caused in part by the current claim drafting regulations. Part III reviews the changes made by the America Invents Act. Part IV proposes new regulations for claim drafting that will offer more significant benefits than those provided by the America Invents Act. Specifically, this paper argues that by requiring applicants to include a claim chart defining each claim limitation, examiners …

Heavyweight Bots In The Clouds: The Wrong Incentives And Poorly Crafted Balances That Lead To The Blocking Of Information Online, Anjanette H. Raymond

Northwestern Journal of Technology and Intellectual Property

The United States and the European Union have long recognized the need to protect ISPs from potential liability from customers using their services to infringe intellectual property rights. These protections arise from a long-standing belief that intellectual property right holders should bear the burden of protecting their property, even in the quick moving Internet environment. However, a recent series of cases has called into question the ISPs’ liability protections as their technology is often the only real means to prevent wide scale infringing activity. This series has caused courts to revisit ISPs’ liability and to impose a ‘cooperative burden’ requiring …

The Orphan Drug Act: How The Fda Unlawfully Usurped Market Exclusivity, Sumin Kim

Northwestern Journal of Technology and Intellectual Property

The Board of KV Pharmaceutical bet the company on the success of Makena®, a pre-term birth drug. However, in the midst of a public outcry over the excessive pricing of Makena®, the FDA declared that it would not honor the market exclusivity that KV Pharmaceutical had obtained for Makena® under the Orphan Drug Act. As a result, KV Pharmaceutical filed for Chapter 11 bankruptcy. This Note analyzes the situation under the lens of the Takings Clause of the Fifth Amendment. Specifically, I argue that market exclusivity for Makena® was private property and thus, the FDA unlawfully usurped KV Pharmaceutical’s private …

Tax The Patent Trolls, James Bessen, Brian Love

Shorter Faculty Works

This essay argues that Congress should increase the size and frequency of patent renewal fees to reduce patent troll activity. Patents owned by trolls are generally old — twelve years on average — when finally asserted in court. Many such patents were originally filed to protect inventions that long ago became obsolete, and today hold value only because they were written so broadly that they arguably can be interpreted to cover technologies developed much later by other inventors. To shackle the dead hand of old inventions, other countries charge patent owners annual fees that must be paid to keep the …

Patent Searching Using The Uspto Public Website, Amy Jansen, Robert Berry

Librarian Publications

Presentations which guides the layman through the basics of using the USPTO website, including the 7 steps of a preliminary patent search.

The United States Patent and Trademark Office website: http://www.uspto.gov/

Supreme Court Amicus Brief Of Law Professors In Support Of Petitioner, Abraham V. Alpha Chi Omega, Christine Farley

Scholarly Articles in Law Reviews & Journals

The Federal Lanham Act provides that injunctive relief, the primary remedy in trademark cases, is to be granted in accordance with the principles of equity. Expressly included among such equitable principles are the defenses of acquiescence, laches, and estoppel. Naturally, these defenses have become commonplace in defending against claims of trademark infringement. In the absence of a statute of limitations courts rely on the doctrine of laches, for example, to determine when trademark infringement claims have become stale. Our informal study of the district in which this case arises shows that from 2005 to 2011, nearly two thirds of answers …

The Illusion Of Copyright Infringement Protection, Jenny Small

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Free Riders At The Drugstore: Generics, Consumer Confusion, And The Public Good, Kelley Clements Keller Esq.

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Intellectual Property Reform In Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens On Internet Service Providers That Unnecessarily Restrict Access To Information And Freedom Of Expression Of The People Of Colombia, Glushko-Samuelson Intellectual Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia

Joint PIJIP/TLS Research Paper Series

No abstract provided.

After Louboutin: Responding To Trademark Ownership Of Color In Creative Contexts, Monica Sullivan

Mercer Law Review

As an artist, it would be difficult to complete a work of art if you were limited to the use of certain colors, only those colors that no other artist had claimed. Imagine, for instance, that Monet, upon completion of his water lilies, is sued by Picasso for using a certain shade of blue. Picasso claims that the blue used by Monet is the same blue he uses to express melancholy. In fact, Picasso has used that blue throughout a number of his paintings, and it has become somewhat of a theme in his work. Should Picasso have ownership of …

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Chicago-Kent Journal of Intellectual Property

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R.K. Stroud

Chicago-Kent Journal of Intellectual Property

Current theories governing trade secrets law incompletely and inadequately protect substantial investment in innovation, rendering them inefficient, reactionary, and largely illusory. Trade secret law exists to fill a gap between other forms of intellectual property and to encourage substantial investment in innovation and to recoup the time and money expended pursuing it, to the long-term benefit of the greater public good. Without strong trade secret protections, the “tragedy of the commons” would lead to the unfair destruction of the fruits of capital and labor and discourage investment in activities calculated to benefit the public, thus hurting our society. I propose …

Private Governance Of Knowledge: Societally-Crafted Intellectual Properties Regimes, Dan Wielsch

Indiana Journal of Global Legal Studies

The evolutionary challenge global society faces is the decentralized development of legal rules that multilaterally protect social autonomies from violating each other. At the national level, democratic constitutions provide for the resolution of conflicts between different normative worlds, although the focus here is certainly on the protection of autonomies from political encroachment. However, political constitutions make sure that legal orders consider a plurality of normative perspectives. In contrast, international lawmaking can exclusively link to a specific social rationality, lacking any impartial forum for normative reconciliation. This is of special importance for the governance of intellectual resources. The incorporation of international …

The Origins Of American Design Patent Protection, Jason John Du Mont, Mark D. Janis

Indiana Law Journal

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes—copyright and trademark—have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs.

One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how …

"Justifying" The Public Interest In Patent Litigation, Scott A. Allen

Indiana Law Journal

No abstract provided.

An Empirical Study Of Certain Settlement-Related Motions For Vacatur In Patent Cases, Jeremy Bock

Indiana Law Journal

When parties jointly move to vacate otherwise proper rulings as part of a settlement agreement, district courts often oblige. While the general practice of vacating rulings to facilitate settlement has been criticized in the academic literature as depriving the public of the benefit of judicial precedents, there are hardly any empirical studies on the prevalence of this practice and its effects, particularly at the district court level where the efficiencies arising from settlement—and the resulting pressure on the court to grant vacatur—are much greater compared to the appellate level. This Article endeavors to add an empirical study to the literature …

Establishing An Island Of Patent Sanity, Oskar Liivak

Cornell Law Faculty Publications

There is a growing, inescapable sense that something has gone terribly wrong with the patent system. The patent system is described as a failure, broken, and dysfunctional. Yet, despite the fact that much of today’s headline-grabbing patent activity appears facially unproductive, we really can’t be sure that the system has failed in its mission. Current patent theory is so indeterminate that it is hard to decisively criticize these activities. In fact, the current narrative cannot conclusively show that patent trolls or any other patent-related activities are or are not economically justified. Though depressing and perhaps embarrassing, this patent indeterminacy is …

The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various “derivatives.” The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase “based upon” with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which …

Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon

Scholarship Chronologically

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of “harm” (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

Issues And Challenges In The Development Of Open Access Publishing And Scholarly Communications In Nigeria, Ifeoma Ann Oluwasemilore

American Association for the Advancement of Science Pacific Conference

The paper notes that advances in technology have resulted in the emergence of open access publishing and scholarly communication. Open access publishing typically provides an internet based digital platform for the publication of research output with unrestricted access to the public while scholarly publication networks encompass inter linked information access to database by educational institutions. The growth of open access publishing and scholarly communication has been very remarkable in many developed countries. However, academic and research institutions in many developing countries like Nigeria are still battling to overcome many challenges in an attempt to make their research outputs openly accessible. …

Graduate Students And Their Publishing Future, Yacouba Moumouni

American Association for the Advancement of Science Pacific Conference

• What is OA?
• The need (Desire) to publish
• OA
• Behind a subscription
• Advantages of OA
• Disadvantages of OA
• Conclusion
• References

American Association For The Advancement Of Science Pacific Division Conference: Panel Presentation Questions, J. Cory Tucker

American Association for the Advancement of Science Pacific Conference

Questions asked of the panel regarding scholarly communication, open access publishing, copyright and intellectual property.

Copyright In Libraries: 21st Century Challenges...And Opportunities, James S. Heller

Library Staff Publications

No abstract provided.

Vara’S Orphans: How Indigenous Artists Can Still Look For Hope In The Moral Rights Regime, Amy Skelton

Indiana Journal of Law and Social Equality

No abstract provided.