Intellectual Property Law Commons^™

Limiting Unfettered Challenges To Patent Validity: Upholding No-Challenge Clauses In Pre-Litigation Patent Settlements Between Preexisting Parties To A License, Nicholas Roper

Cardozo Law Review

No abstract provided.

Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec

Faculty Publications

Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …

Copyrighting The "Useful Art" Of Couture: Expanding Intellectual Property Protection For Fashion Designs, M. C. Miller

William & Mary Law Review

No abstract provided.

More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg

William & Mary Law Review

Part I begins the inquiry by describing trademark’s connection with other consumer information laws. In many cases optimal trademark policy—by whatever criteria—depends on the state of play in another regime. This complicates trademark’s development in multiple ways. It is not simply a problem of determining how another body of law treats the related issue. Identifying the relevant parallel regime is not always easy. Indeed, sometimes the laws most pertinent to the production of consumer information are more general in nature—think, for example, of the role that simple trespass law plays in determining what we know about how our meat is …

What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat

Faculty Scholarship

This essay gives an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent case filing, this study presents analysis of over 200 attorney fee award orders during 2003-2013.

The study confirms the commonsense view that plaintiffs have tended to …

Understanding Blogging And Copyright Infringement Within A Pinterest Generation, Ashley Mcalpin

Masters Theses

Copyright infringement within a Pinterest generation is growing at an alarming rate. This study sought to explain the phenomenon of stealing on Pinterest through a study of social interaction and perception thereof. The author found that the overall concept of interaction was widely misunderstood, along with the current copyright laws, leading to a broken sense of ethicality among the Pinterest generation. Through this study the impact of peer interaction, in compliance with the standards of Bandura's Social Learning theory (1977), was reviewed and found applicable to the Pinterest generation today. This study proved it relevant to further research the ethical …

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …

Casting A Frand Shadow: The Importance Of Legally Defining "Fair And Reasonable" And How "Microsoft V. Motorola" Missed The Mark, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

High tech markets must strike an awkward balance between coordination and competition in order to achieve efficiency. The need for competition is familiar; antitrust--as well as many other legal institutions--recognizes that consumers benefit and resources are best allocated when producers face fierce competition. But at the same time, the interoperability of competing high tech products can promote both consumer and producer welfare, necessitating a level of coordination not typically associated with atomistic, competitive markets. The necessity of interoperability has been addressed privately by industry-wide standard-setting and coordination of competitors around these standards. Likewise, the competitive risks of that coordination are …

Copyright And 3d Printing, James Barker

Technology Law and Public Policy Clinic

The implications of 3D printing are manifold, with some commentators anticipating permanent market disruption in the massive (and ill-defined) field of small physical things. I begin this paper by asserting that the opportunities afforded by 3D printing are so attractive that it is a mere matter of time before an explosion of use; but that the diffusion of manufacturing to the consumer level is poised to put individual end-users in uncomfortably close contact with intellectual property law.

By analogy to the physical CD-distribution model, and the ways in which it broke down in the Napster era, (and with sensitivity to …

Determining The Location Of Injury For New York's Long Arm Statute In An Infringement Claim, Stefan Josephs

Touro Law Review

No abstract provided.

Rauschenberg, Royalties, And Artists' Rights: Potential Droit De Suite Legislation In The United States, M. Elizabeth Petty

William & Mary Bill of Rights Journal

No abstract provided.

Don’T Get Slammed Into Nefer Nefer Land: Complaints In The Civil Forfeiture Of Cultural Property, Victoria A. Russell

Pace Intellectual Property, Sports & Entertainment Law Forum

The Saint Louis Art Museum, known as SLAM, acquired the mask of Ka-Nefer-Nefer in 1998. Eight years later, the Egyptian Supreme Council of Antiquities called for its return on the grounds that it had been stolen from the Egyptian Museum in Cairo. SLAM refused. In 2011, the case went before the United States District Court for the Eastern District of Missouri to determine the ownership of the mask. Perhaps to the surprise of many, the court decided that the mask belongs in Saint Louis.

This Article will explain how this case was properly decided, albeit on a legal technicality. It …

Slaves To Copyright: Branding Human Flesh As A Tangible Medium Of Expression, Arrielle Sophia Millstein

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this Article demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”

I’M The One Making The Money, Now Where’S My Cut? Revisiting The Student-Athlete As An “Employee” Under The National Labor Relations Act, John J. Leppler

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.

Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it does not have …

Reports Of Its Death Are Greatly Exaggerated: Ebay, Bosch, And The Presumption Of Irreparable Harm In Hatch-Waxman Litigation, Kenneth C. Louis

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article examines the preliminary injunction standard in pharmaceutical patent infringement actions pursuant to the Hatch-Waxman Act. Prior to Supreme Court’s decision in eBay v. MercExchange, L.L.C. in 2006, federal courts applied a presumption of irreparable harm when a patent holder established a likelihood of success on the merits. While the eBay Court abrogated the presumption of irreparable harm in permanent injunctions, courts have been unclear as to application of eBay on preliminary in-junctions. This Article will further examine preliminary injunctions in Hatch-Waxman actions in the District of New Jersey since eBay in 2006 and argue that courts still tacitly …

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 1, Winter 2014

Pace Intellectual Property, Sports & Entertainment Law Forum

Thank you for downloading the first digital edition of the Pace Intellectual Property, Sports & Entertainment Law Forum. As you scroll through the pages of this issue, you may notice the Forum has a new look. Recognizing the significant advancements in technology that have revolutionized the legal field in the past few years, the Volume 4 Editorial Board sought to update and adapt the Forum to be accessible digitally, formatting the issue for tablets and e-readers. As you read, take advantage of clickable Tables of Contents and links to online sources throughout the issue.

Twenty Years In The Making: Transitioning Patented Seed Traits Into The Generic Market, Brianna M. Schonenberg

Marquette Law Review

Since the introduction of genetically modified seeds into the global market during the 1990s, there has been little need to prepare for the expiration of the patents related to the technologies. That is, until the expiration of the pioneer Roundup Ready seed-trait patent drew near. Now that Monsanto’s Roundup Ready seed-trait patent is nearing expiration, seed-producing competitors, farmers, and the global food market have raised questions regarding how Monsanto will handle the unprecedented transition into a generic seed market. In response, Monsanto and other agricultural-biotechnology companies have created the Accord, comprised of two contractual agreements, which attempts to regulate the …

Celebrity, Justice, And The American Way: Alter Egos And The Right Of Publicity, Brad Desnoyer

Faculty Works

No abstract provided.

A Study On The Safe Harbor Rules For Online File Hosting Service Providers Under Copyright Law In China, Shi Xu

Maurer Theses and Dissertations

Today both the U.S. and China are plagued with copyright infringement, particularly infringement involving online file sharing via file hosting services. The safe harbor rules in the U.S. Digital Millennium Copyright Act (here after “DMCA”) §512(c) provide a certain amount of protection for contributory infringers, such as file hosting service providers, as long as certain conditions are met. Although China has borrowed extensively from DMCA §512(c) in setting up its own safe harbor rules, their content and standard of review remain unclear, leading to inconsistencies in judgments. In this circumstance, this thesis tries to analysis each element of the safe …

Will The “Nexus” Requirement Of Apple V. Samsung Preclude Injunctive Relief In The Majority Of Patent Cases?: Echoes Of The Entire Market Value Rule, Daniel Harris Brean

San Diego Law Review

In eBay Inc. v. MercExchange, L.L.C., the Supreme Court put an end to the practice of presuming that injunctive relief is appropriate upon a finding of patent infringement, where it held that “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.” 547 U.S. 388, 394 (2006). This decision made injunctive relief much more difficult to obtain but also attempted to maintain discretion and avoid rigid …

Induced To Infringe: Divided Patent Infringement In Light Of The Akamai Ruling, Sean Africk

Nevada Law Journal

No abstract provided.

The Growing Public Domain In Medicine, Saurabh Vishnubhakat

Faculty Scholarship

This essay describes the growing public domain of inventions associated with drugs and medicine, and geographies associated with identifiable shifts in the balance of innovation that may be especially favorable for promoting wider access to socially useful technologies. To do so, it departs from the largely ex ante perspective that currently informs the intersectional debate regarding human rights and patent rights and, instead, looks backward to inquire what innovations from past patents have already become publicly available in service of the human rights objective of greater access to technology. Ex post analysis of this kind may help public and private …

Creating Around Copyright, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate …

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Vanderbilt Law Review

For decades now, there has been a pronounced trend in civil litigation away from adjudication and toward settlement. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss's seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings and have argued that the secondary effects of settlement -especially the lack of decisional law-are damaging to our judicial system. Still, despite these criticisms, …

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Journal of Public Law and Policy

This article discusses the importance of passing the Social Networking Online Protection Act and the Password Protection Act to afford vital protection against discrimination in hiring and admission decisions. Existing laws fail to adequately provide protection against discrimination after the advent of social media. Furthermore, failure to provide to provide protection via federal laws will create a disparity in the protection afforded individuals across the United States.

Social media has introduced a new world of opportunities for sharing, networking, but it has also created ample opportunities for others to snoop around, discriminate, and base their hiring or admission decisions, in …

“Sharing” Copyrights: The Copyright Implications Of User Content In Social Media, Jessica Gutierrez Alm

Journal of Public Law and Policy

Copyright law in America, in its current stage of development, does not sit well with common social media practices. This article explores the copyright implications of user content on social media platforms, such as Facebook, Twitter, and Pinterest. It first examines the copyrightability of "user-generated" content, and the broad licenses that users grant by agreeing to the vague Terms of Use that social media sites set forth. The article then looks to "user-found" content and activities such as "sharing" or "pinning" the creative works of others. Through these practices and conflicting Terms of Use, social media websites both encourage and …

Facing Real-Time Identification In Mobile Apps & Wearable Computers, Yana Welinder

Santa Clara High Technology Law Journal

The use of face recognition technology in mobile apps and wearable computers challenges individuals’ ability to remain anonymous in public places. These apps can also link individuals’ offline activities to their online profiles, generating a digital paper trail of their every move. The ability to go off the radar allows for quiet reflection and daring experimentation—processes that are essential to a productive and democratic society. Given what we stand to lose, we ought to be cautious with groundbreaking technological progress. It does not mean that we have to move any slower, but we should think about potential consequences of the …

Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter

Santa Clara High Technology Law Journal

This essay, which builds on my recent work on the law and economics of comparative patent remedies, presents three proposals relating to the enforcement of domestic patent rights. The first, which may be close to being adopted in the United States, is for the courts and the International Trade Commission (ITC) to adopt a general presumption, grounded in patent law and policy, that patent owners who have committed to license their standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory terms are not entitled to permanent injunctions or exclusion orders, but rather only to a damages in the form of …

Who Is The Witness To An Internet Crime: The Confrontation Clause, Digital Forensics, And Child Pornography, Merritt Baer

Santa Clara High Technology Law Journal

The Sixth Amendment’s Confrontation Clause guarantees the accused the right to confront witnesses against him. In this article I examine child pornography prosecution, in which we must apply this constitutional standard to digital forensic evidence. I ask, “Who is the witness to an Internet crime?”

The Confrontation Clause proscribes the admission of hearsay. In Ohio v. Roberts, the Supreme Court stated that the primary concern was reliability and that hearsay might be admissible if the reliability concerns were assuaged. Twenty-four years later, in Crawford v. Washington, the Supreme Court repositioned the Confrontation Clause of the Sixth Amendment as a procedural …