Intellectual Property Law Commons^™

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough

Michigan Telecommunications & Technology Law Review

35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the …

Is There A Patent Troll Problem In The U.K.?, Christian Helmers, Brian J. Love, Luke Mcdonagh

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper reports the findings of an empirical study of patent suits involving non-practicing entities (NPEs) in the U.K. between 2000 and 2010. Overall, we find that NPEs are responsible for 11% of all patent suits filed in the U.K. during this period. Though this is a small percentage by U.S. standards, our study suggests that patent trolling might not be as uniquely American as conventional wisdom suggests. We also find little support for many common explanations for Europe’s relative scarcity of NPE activity. For example, we find that NPEs litigating in the U.K. overwhelmingly assert high-tech patents – even …

Sowing The Seeds Of Protection, Elizabeth I. Winston

Scholarly Articles

Seeds are chattel. As such, seeds are protectable by the same tapestry of public and private ordering as other forms of chattel. However, the distinguishing characteristic of seeds, their method of propagation, and the history of seeds-traditionally viewed as a public good rather than chatteldistort that tapestry. The model of seed distribution thus needs to be refrained in light of the often disparate interests of innovators, producers, and consumers. As with all chattel, there is no single, correct model for distributing seeds, but law and contract may be woven together to strike a balance.

Comments: Avoiding Those Wearing Propeller Hats: The Use Of Blue Ribbon Juries In Complex Patent Litigation, Jordan M. Halle

University of Baltimore Law Review

I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these... How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance.

Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95,115 (C.C.S.D.N.Y. 1911), affd in part, rev'd in …

Formerly Manufacturing Entities: Piercing The "Patent Troll" Rhetoric, Kristen Jakobsen Osenga

Law Faculty Publications

Everyone hates patent trolls-those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more …

Issues And Best Practices In Connection With Educational Resources And Other Materials In The “Cloud”, Michael Landau, Donna K. Lewis

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Step-Plus-Function Claims: An Analysis Of Federal Circuit Law, Kyle O. Logan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Standard Essential Patents, Trolls, And The Smartphone Wars: Triangulating The End Game, Daryl Lim

Faculty Scholarly Works

Few legal issues in recent years have captured the public's attention more powerfully than litigation over standard essential patents ("SEPs"). This Article explains how SEP litigation overlaps with two other major centers of patent litigation-litigation involving smartphones and patent assertion entities ("PAEs"). It observes that attempting to pre-empt patent hold-ups by imposing blanket ex ante disclosure obligations and royalty caps on standard setting organizations ("SSOs") is misdirected and counterproductive. Instead, the solution lies in clear and balanced rules to determine "fair, reasonable and non-discriminatory" (FRAND) royalties and injunctive relief. This solution will help parties make more realistic assessments of their …

Patent Dialogue, Jonas Anderson

Utah Law Faculty Scholarship

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Informal Deference: A Historical, Empirical, And Normative Analysis Of Patent Claim Construction, Jonas Anderson, Peter S. Menell

Utah Law Faculty Scholarship

Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its "mongrel" mixed fact/law character, the Federal Circuit's adherence to the view that claim construction is a pure question of law subject to de novo appellate review produced …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Utah Law Faculty Scholarship

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

Copyright Crime And Punishment: The First Amendment's Proportionality Problem, Margot Kaminski

Maryland Law Review

No abstract provided.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Maryland Law Review

No abstract provided.

How Real Is The Concern That Seed Patents Will Turn Farmers Into Inadvertent Infringers?, Christopher M. Holman

Faculty Works

The fear that farmers could be found liable for patent infringement based on the inadvertent presence of patented genetically modified plants on the farmer’s fields has led to calls for limitations on the scope and enforceability of patents. These “reforms” would be especially problematic for agricultural biotechnology companies like Monsanto, but the repercussions could be more widespread, impacting a host of important cutting-edge technologies like synthetic biology and nanotechnology. Although stories of farmers being sued by Monsanto after their fields where inadvertently contaminated by genetic drift are widely circulated, inadvertent infringement based upon genetic drift or the presence of trace …

Masthead, Volume 5 Issue 1 (2014)

Journal of Law, Technology, & the Internet

No abstract provided.

Volume 5 (2014), Case Western Reserve Journal Of Law, Technology & The Internet

Journal of Law, Technology, & the Internet

No abstract provided.

The Exclusive Economic Zone: A 'No-Man's Land' For United States Patent Law, Matthew T. Hanna

Journal of Law, Technology, & the Internet

No abstract provided.

Use Of Technology Transfers To Promote Domestic Innovation Of Climate Change Technologies In China, Ankit Patel

Journal of Law, Technology, & the Internet

No abstract provided.

Hacking The Planet, The Dalai Lama, And You: Managing Technical Vulnerabilities In The Internet Through Polycentric Governance, Amanda Craig, Scott Shackelford

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article analyzes key vulnerabilities in the Internet's infrastructure, protocols, and code, and how they may be better managed through interventions at multiple levels. In particular, this Article examines the concept of polycentric governance and its applicability to technical vulnerabilities in the Internet. This theory has been championed by proponents such as Nobel Laureate Elinor Ostrom and promotes self-organization and networking regulations at multiple levels to address an array of global issues, from urban crime, to climate change and cyber attacks. However, there has not yet been a consideration of the applicability of this framework to technical Internet vulnerabilities explicitly, …

The Role Of Stare Decisis At The U.S. International Trade Commission, Justin Hendrix, P. Andrew Riley, Christine Lehman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Protecting Cultural Heritage By Strictly Scrutinizing Museum Acquisitions, Leila Alexandra Amineddoleh

Fordham Intellectual Property, Media and Entertainment Law Journal

There are many ways to protect cultural heritage as a valuable commodity. Although heightened security measures and extensive surveillance methods can deter theft, a more effective means for reducing theft is the elimination of the demand for black market art items. Trade in unprovenanced antiquities is a demand-driven crime; the market for illegal or undocumented items is driven by buyers’ wants. The most effective method of protection for cultural heritage is to eliminate the demand for black market for these precious objects, thereby reducing the market, a method known as the “market reduction approach.” There is a well-documented link between …

Faith And Martyrdom: The Tragedy Of Aaron Swartz, Austin C. Murnane

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

“Sharing” With The Court: The Discoverability Of Private Social Media Accounts In Civil Litigation, Zoe Rosenthal

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Constitutional Hazard:The California Resale Royalty Act And The Futility Of State-Level Implementation Of Droit De Suite Legislation, Nithin Kumar

Kernochan Center for Law, Media, and the Arts

Répétition d’un Ballet, the famous painting by French artist Edgar Degas, sold for $401,000 in 1965. The jubilant seller bragged that Degas originally asked a mere $100 for the painting. In his early career, celebrated American artist Norman Rockwell sold original works like Homecoming Marine and Breaking Home Ties for a few hundred dollars each. In the last decade, these paintings were resold for $9.2 million and $15.4 million at Sotheby’s auctions, but the Rockwell estate received nothing in these transactions. Over the centuries, great wealth in the arts has rarely translated into great wealth for the artist. Since …

Regulating The Unregulable: Finding The Proper Scope For Legislation To Combat Copyright Infringement On The Internet, Melis Atalay

UC Law SF Communications and Entertainment Journal

This note seeks to critically evaluate the current trend of copyright legislation, and use the response for legislation to hypothesize what sort copyright legislation for the Internet may be successful in the future. The SOPA/PIPA legacy provides evidence for today's legislature that broad reforms will not work. Indeed the reigning in seen in OPEN was a reflection of SOPA/PIPA progeny being responsive to public outcry over SOPA/PIPA. I conclude that OPEN would have been an appropriate balance of constriction and Internet availability. If passed, OPEN would have been a step in the right direction to combat the illegal access and …

Celebrity Politicians And Publicity Rights In The Age Of Obama, Michael G. Bennett

UC Law SF Communications and Entertainment Journal

The right of publicity is a relatively marginalized yet increasingly radical form of intellectual property. Typically, celebrities use it to prevent freeloaders from profiting on their fame by making unauthorized use of their image, likeness or signature to make goods or services more attractive to consumers. The right of publicity allows famous individuals to stop this type of behavior by providing a property right in identity or persona. Brandished by celebrities who are also political figures, though, the doctrine can become a powerful means of chilling political speech, and therefore a direct threat to First Amendment free speech rights. The …

Bag Men And The Ghost Of Richard Jewell: Some Legal And Ethical Lessons About Implied Defamation, Headlines, And Reporting On Breaking Criminal Activity From Barhoum V. Nyp Holdings, Clay Calvert, Daniel Axelrod, Sarah Papadelias, Linda Riedemann

UC Law SF Communications and Entertainment Journal

This article analyzes and explores the complex issues of libel by implication and defamatory meaning raised in the ongoing libel suit of Barhoum v. NYP Holdings. The case pivots on the New York Post's "BAG MEN" cover that ran on April 18, 2013, and featured a large photo of two men cleared of wrongdoing in connection with the Boston Marathon bombing. This article, which compares and contrasts Barhoum to decisions such as Kaelin v. Globe Communications Corp. and Stanton v. Metro Corp., also examines the possible impact of the New York Post's tiny front-page disclaimer. Furthermore, this article considers how …

Rethinking Online Privacy Litigation As Google Expands Use Of Tracking: Giving Meaning To Our Online Browsing And The Federal Wiretap Act, Filip Babic

UC Law SF Communications and Entertainment Journal

This note will argue that Google's new privacy policies violate the Wiretap Act as amended by the Electronic Communication Privacy Act. The Wiretap Act provides a cause of action against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The Wiretap Act, originally drafted to prevent eavesdropping on telephone conversations, requires interception of the contents of communication and not merely the circumstances surrounding the communication. As Google's practices have made it easier for users to characterize their searches as the "contents of communication," the Wiretap …

Journalists, Social Media And Copyright: Demystifing Fair Use In The Emergent Digital Environment, Patricia Aufderheide

Journal of Business & Technology Law

No abstract provided.