Intellectual Property Law Commons^™

Intellectual Property Issues In The Network Cloud: Virtual Models And Digital Three-Dimensional Printers, Darrell G. Mottley

Journal of Business & Technology Law

No abstract provided.

Remade In China: What Does Recycling Tell Us About The Chinese Patent System?, 82 Umkc L. Rev. 887 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

What can we expect of China's patent law during the tenure of President Xi Jinping? This article proffers a partial answer to this broad question through the close reading of patent allegations against Chinese refurbishers and recyclers. Although the doctrinal issues presented are specific, these disputes occupy a policy space where competing goals of development tear a slit in the glossy exterior of the “Chinese Dream” meme that comes to represent Xi's administration, a slit through which we may gain some insight into the direction of IP development in China.

In the process of domesticating a legal regime originated from …

Standard Essential Patents, Trolls, And The Smartphone Wars: Triangulating The End Game, 119 Penn St. L. Rev. 1 (2014), Daryl Lim

UIC Law Open Access Faculty Scholarship

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 Markets: An Opportunity For Technology Diffusion And Frand Licensing?, Stéphanie Chuffart-Finsterwald

Marquette Intellectual Property Law Review

None.

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

The Need To Reform In Pharmaceutical Protection: The Inapplicability Of The Patent System To The Pharmaceutical Industry And The Recommendation Of A Shift Towards Regulatory Exclusivities, Amanda Fachler

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Unreasonable Access: Disguised Issue Advocacy And The First Amendment Status Of Broadcasters, Kerry L. Monroe

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Replicator And The First Amendment, Kyle Langvardt

Fordham Intellectual Property, Media and Entertainment Law Journal

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights. This Article is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Using Reasonable Royalties To Value Patented Technology, David 0. Taylor

Georgia Law Review

In the last several years, commentators have expressed serious concerns with the state of the law governing awards of reasonable royalties as damages in patent infringement cases. Given these concerns, the proper assessment of royalties has been a recent, frequent topic for debate among economists and legal scholars. At the same time, all three branches of the federal government have studied ways to improve the law governing reasonable royalties. In this Article, I reframe the ongoing debate by identifying and exploring two basic paradigms for calculating reasonable royalties: valuing patent rights and valuing patented technology. The traditional paradigm, valuing patent …

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …

The Core Of Copyright: Authors, Not Publishers, Wendy J. Gordon

Faculty Scholarship

Copyright largely consists of alienable rights and correlative duties — rights of exclusion given to individuals, and correlative duties not-to-copy imposed on the public. This Article argues that such right/duty pairs arise out of authorial creation. A focus on creation is not very popular at the moment; a growing number of commentators take the position that copyright is “about” making publishing and other dissemination industries more efficient and stronger. The Article encourages the legal community instead to return to the focus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor. …

Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan

Faculty Scholarship

Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. In one – contributory infringement – courts struggle with the tension between preserving legitimate, non-infringing uses of technologies, on the one hand, and minimizing infringement, on the other. In the other – direct infringement – liability turns on perceived wrongdoing by intermediaries whose own behavior increases the risk of consumer confusion. This second type of liability boasts neither a clear doctrinal framework nor a coherent normative vision. Most troublingly, the scant case law has paid little attention to issues at the core of …

Post-Myriad Genetics Copyright Of Synthetic Biology And Living Media, Michael D. Murray

Law Faculty Scholarly Articles

This Article addresses copyright as a viable form of intellectual property protection for living, organic creations of science and art. The United States Supreme Court's decision in Association for Molecular Pathology v. Myriad Genetics, Inc. narrowed patent-eligible protection over living components of humans or other organisms. Synthetic biologists are expected to look with renewed focus on copyright law for the intellectual property protection of biological creations. The contribution of this Article is to reveal that the same issues are raised with regard to the copyrightability of the works of synthetic biology as are raised by pictorial, graphic, and sculptural arts …

The Gpl Meets The Ucc: Does Free Software Come With A Warranty Of No Infringement Of Patents And Copyrights?, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The GNU General Public License, known as the GPL, is the cornerstone of free software. The GPL has served as the organizing document for free software, providing a structure that has helped transformed the development of software and electronic devices. Software licensed under the GPL may be freely copied and adapted. The source code for the software is made available, to enable anyone to study and change it. The GPL does have "copyleft" restrictions, intended to keep the software free for others. If someone adapts and redistributes GPL’d software, they must likewise allow access to their source code. The GPL …

Cad’S Cradle: Untangling Copyrightability, Derivative Works, And Fair Use In 3d Printing, Kyle Dolinsky

Washington and Lee Law Review

No abstract provided.

Food Art: Protecting "Food Presentation" Under U.S. Intellectual Property Law, Cathay Y. N. Smith

Faculty Law Review Articles

In 2006, a scandal broke in the culinary world. It was alleged that Robin Wickens, chef at (now closed) Interlude restaurant in Melbourne, Australia, had copied dishes by renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes. This Article examines whether chefs can protect the artistic presentation or plating …

Intellectual Property And Public Health - A White Paper, Ryan Vacca

Faculty Publications

On October 26, 2012, The University of Akron School of Law's Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants, and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Food For Thought: Genetically Modified Seeds As De Facto Standard-Essential Patents, Ryan Vacca, Benjamin M. Cole, Brent J. Horton

Faculty Publications

For several years, courts have improperly calculated damages in cases involving the unlicensed use of genetically modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent's status as a de facto standard-essential patent. To be classified as a de facto standard-essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, (2) impracticability, …

Meatspace, The Internet, And The Cloud: How Changes In Document Storage And Transfer Can Affect Ip Rights, Sharon Sandeen

Faculty Scholarship

This article discusses the intellectual property issues from "meatspace" to online services and the Internet. It further explores intellectual property issues from the Internet to the Cloud. Finally, it discusses the implications of cloud computing for trade secret protection.

Functional Elements In Patent Claims, As Construed By The Patent Trial And Appeal Board (Ptab), 13 J. Marshall Rev. Intell. Prop. L. 251 (2014), Tom Brody

UIC Review of Intellectual Property Law

Claims in patents include both structural elements and functional elements. Functional elements occur in various categories: (1) Functional elements that mandate a particular range of structures that are able to perform the required function; (2) Functional elements that mandate a particular cooperation between structures; (3) Compound noun/function functional elements, (4) Active-type functional elements; (5) “Capable of”-type functional elements, (6) Single-word structural elements that are typical nouns, but that are also functional elements, e.g., “plasticizer,” and (7) Quasi-functional elements that lack any patentable weight. This article discloses which of these types of functional elements confers the broadest claim scope, and which …

Will Nanotechnology Products Be Impacted By The Federal Courts’ “Product Of Nature’ Exception To Subject-Matter Eligibility Under 35 U.S.C. 101?, 13 J. Marshall Rev. Intell. Prop. L. 397 (2014), Laura W. Smalley

UIC Review of Intellectual Property Law

In 2013, the Supreme Court in Myriad held that DNA is a “product of nature” that is not patentable merely because it is isolated from the human body. The year before, the Supreme Court in Prometheus held that diagnostic tests that incorporate little more than a “law of nature” is not patent eligible. These two decisions altered the landscape of patent eligible subject matter under Section 101 of the patent statute. They not only impact the patent eligibility of isolated DNA or diagnostic tests, but they may also have far wider-ranging impact on other technological fields, including biotechnology and nanotechnology. …

Hatch-Waxman’S Safe-Harbor Provision For Pharmaceutical Development: A Free Ride For Patent Infringers?, 13 J. Marshall Rev. Intell. Prop. L. 445 (2014), Kate Y. Jung

UIC Review of Intellectual Property Law

The Safe-Harbor provision of the Hatch-Waxman Act allows generic drug manufacturers to use a patented invention during pre-market testing of generic drugs. However, the U.S. Court of Appeals for the Federal Circuit’s recent interpretation of the Safe-Harbor provision in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. created controversy when it extended the Safe-Harbor exemption to post-FDA approval. This extension was done in an unprecedented manner and would “allow almost all activity by pharmaceutical companies to constitute ‘submission’ and therefore justify a free license to trespass.” The U.S. Supreme Court has yet to settle this matter, and courts are now faced …

Review And Reflection: Copyright Hearings And Related Discourse In The Nation’S Capital, 13 J. Marshall Rev. Intell. Prop. L. 487 (2014), Maria A. Pallante

UIC Review of Intellectual Property Law

On February 28, 2014, the Register of Copyrights of the United States and Director of the U.S. Copyright Office Maria A. Pallante delivered a keynote speech on the copyright hearings and related discourse in the nation’s capital. The speech was given at The John Marshall Law School’s 58th Annual Intellectual Property Conference. This article is based on her speech at the Conference.

What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang

UIC Review of Intellectual Property Law

This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …

They’Re Playing Our Song! The Promise And The Perils Of Music Copyright Litigation, 13 J. Marshall Rev. Intell. Prop. L. 555 (2014), William R. Coulson

UIC Review of Intellectual Property Law

Music copyright cases are unique, costly, difficult, and complex. It was no different in the case where Ray Repp, a music composer for a Catholic publishing house, filed suit against Andrew Lloyd Webber, the famed British composer most famous for such Broadway hits as Cats and Phantom of the Opera. Repp alleged that Webber’s “Phantom Song,” the theme music for the Phantom of the Opera musical, infringed Repp’s song “Till You,” which he wrote and copyrighted almost a decade earlier. Webber in turn claimed that Repp’s “Till You” was in fact a copy of an even earlier Webber song, “Close …

Aerevolution: Why We Should, Briefly, Embrace Unlicensed Online Streaming Of Retransmitted Broadcast Television Content, 13 J. Marshall Rev. Intell. Prop. L. 577 (2014), Bradley Ryba

UIC Review of Intellectual Property Law

The United States has long recognized broadcast television programming’s importance to the public’s information and entertainment needs. Accordingly, Congress has historically offered strong copyright protections for broadcast television networks. Those strong protections allowed broadcast networks to withstand business threats from innovations like cable television and VCRs. However, Congress’ recent silence on DVRs and cloud computing technology has allowed an entrepreneur to create the networks’ next biggest threat, Aereo. The creators of Aereo and similar businesses designed their services specifically around ambiguities within copyright law that could allow them to transmit networks’ content without paying the otherwise necessary consent fees. These …

Streaming Into The Future: Why Legislation And Technology Have Opened Pandora’S Box For The Recording Industry And The Webcasting Services, 13 J. Marshall Rev. Intell. Prop. L. 649 (2014), Rachael Stack

UIC Review of Intellectual Property Law

Today, music is everywhere, but this was not always the case. Listeners are surrounded by endless access to libraries and playlists from the advancement in technology. With the rapid technological advancements, Copyright law has been left behind at a stand still. Since the enactment of the Copyright Act, sound recordings have received less favorable treatment compared to their music counterpart. Sound recording copyrights are afforded digital performance royalties when broadcasted on popular Internet streaming services, like Pandora. In the last few years, music streaming has become more popular among listeners and thus, more sound recording royalties have been distributed; but, …

Adopting Pharmacogenomics And Parenting Repurposed Molecules Under The Orphan Drug Act: A Cost Dilemma?, 13 J. Marshall Rev. Intell. Prop. L. 667 (2014), David C. Babaian

UIC Review of Intellectual Property Law

The business model under which the pharmaceutical industry has operated in the recent past has become untenable. The era that has seen a consistent pipeline of blockbuster medicines for common chronic diseases is waning. New paradigms for more efficient and more economical drug development are being sought and implemented. Recent growth both in the repurposing of existing drugs and in the orphan product market has signaled the new hope for success and profit. New technology and the promise of personalized medicine augment the sense of optimism in this time of complementary transition in the wider healthcare industry. Yet, are the …