Intellectual Property Law Commons^™

Which Patent Systems Are Better For Inventors?, James Bessen, Grid Thoma

Faculty Scholarship

International comparisons of patent systems are essential to harmonization treaties and to analyze economic growth. Yet these comparisons often rely on little but conventional wisdom. This paper develops an empirical method to compare the economic strength and quality of patent systems by using renewal analysis of matched patents in different countries (same patent family). Comparing patents on the same inventions filed at the EPO for Germany and in the US, we find that the German patents generate substantially greater market power than their US equivalents, especially for small inventors. Also, the average US patent has relatively lower economic value (“quality”).

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Georgia Journal of International & Comparative Law

No abstract provided.

A Globally Sustainable Right To Land: Utilizing Real Property To Protect The Traditional Knowledge Of Indigenous Peoples And Local Communities, Jennifer Lynn Zweig

Georgia Journal of International & Comparative Law

No abstract provided.

Who's Virus Is It Anyway? How The World Health Organization Can Protect Against Claims Of "Viral Sovereignty", Jason Carter

Georgia Journal of International & Comparative Law

No abstract provided.

The Globalization Of Intellectual Property Rights: Trips, Bits, And The Search For Uniform Protection, Alan M. Anderson, Bobak Razavi

Georgia Journal of International & Comparative Law

No abstract provided.

Inevitable Imbalance: Why Ftc V. Actavis Was Inadequate To Solve The Reverse Payment Settlement Problem And Proposing A New Amendment To The Hatch-Waxman Act, Rachel A. Lewis

Seattle University Law Review

The law regarding reverse payment settlements is anything but settled. Reverse payment settlements are settlements that occur during a patent infringement litigation in which a pharmaceutical patent holder pays a generic drug producer to not infringe on the pharmaceutical patent. Despite the recent decision by the United States Supreme Court in FTC v. Actavis, Inc., there are still unanswered questions about how the “full rule of reason” analysis will be applied to reverse payment. This Comment argues that despite the outcome in Actavis, the complex regulatory framework of the Hatch–Waxman Act will create repeated conflicts between antitrust law and patent …

Moving All-In With The World Trade Organization: Ignoring Adverse Rulings And Gambling With The Future Of The Wto, Paul Rothstein

Georgia Journal of International & Comparative Law

No abstract provided.

Federal Circuit's Obviousness Test For New Pharmaceutical Compounds: Gobbledygook?, Douglas L. Rogers

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Restoring The Balancing Test: A Better Approach To Fair Use In Copyright, Charlie Penrod

Chicago-Kent Journal of Intellectual Property

Fair use analyses are overly vague and abstract. While the Copyright Act established four factors for courts to consider when determining if an alleged infringer’s use of copyrighted work is “fair”, these factors are not susceptible to easy interpretation. More importantly, once these factors have been interpreted, a trier of fact is instructed to balance these factors against each other. No effective method currently exists in guiding courts as to how to balance inherently disparate factors against each other, either in terms of intensity of the factors or how one factor might balance against another totally different factor. This article …

Patent, But Where Is Home And Global Justice? A Rawlsian And Senian Inquiry, Deming Liu

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Mourning The Loss Of Copyright's Unsung Hero: Destruction Of The First Sale Doctrine, C. Todd Mosley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Keeping It Under Wraps: Trade Secrecy For Offshore Asset Protection Plans, Thomas A. Brunty

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Silent Similarity, Jessica Litman

Chicago-Kent Journal of Intellectual Property

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart …

Mind-Movies: Original Authorship As Applied To Works From "Mind-Reading" Neurotechnology, Theo Austin Bruton

Chicago-Kent Journal of Intellectual Property

U.S. courts frequently analyze new technology under copyright law. Over the years, the courts have applied copyright law to photographic cameras, computer programs, digital video recorders, and much more. However, a recent breakthrough in the neuroscience community may force judges to apply copyright standards in an unorthodox fashion. A group of researchers at UC Berkeley devised a process that reconstructs video sequences from the human brain, essentially creating a movie from the person’s mind. As this neurotechnology develops, it is uncertain how judges will apply copyright law to content taken directly from the brain. Nevertheless, this Article argues that such …

The End Of (Meta) Search Engines In Europe?, Martin Husovec

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Trademark Extortionist Revisited: A Response To Vogel And Schachter, Kenneth L. Port

Chicago-Kent Journal of Intellectual Property

Trademark bullying (a.k.a. trademark extortion) is a very controversial notion in trademark litigation in the United States. There, for sure, is a lot of illegitimate trademark infringement happening. Anecdotally, we also know that trademark holders often overstep in the assertion of their otherwise legitimate rights. For the first time, this article documents how large a problem trademark bullying is and how often it happens. Trademark bullying occurs when there is evidence that a trademark holder asserts a non-famous mark against a non-competing entity on or in connection with goods or services into which the plaintiff has no reasonable expectation of …

Keynote Address: Stalemate Or Statesmen: What Is Needed To Move Forward Constructively With The Balancing Of America's Ip System?, David J. Kappos

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Aereo And Filmon: Technology’S Latest Copyright War And Why Aereo Should Survive, Krista Consiglio

Washington and Lee Law Review

No abstract provided.

Rethinking Trademark Functionality As A Question Of Fact, Yvette Joy Liebesman

Nevada Law Journal

No abstract provided.

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

All Faculty Scholarship

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argues that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality, …

Aereo: Cutting The Cord Or Splitting The Circuit?, Julie Borna

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Top Tens In 2013: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This paper discusses notable intellectual property law caselaw in the United States in 2013. The Supreme Court decided four patent cases, holding that isolated human DNA is not patentable; that lawsuits alleging legal malpractice in patent cases are to be litigated in state, not federal, court; that seeds grown from genetically modified patented seeds cannot be resold; and that reverse-payment settlements between brand name and generic pharmaceutical companies are subject to scrutiny under the anti-trust laws. The one trademark case the Court decided addressed an issue with more impact in the patent area: whether a rights holder can destroy jurisdiction …

Goodbye To Berlin –Where Is Oa Heading?, Claudio Aspesi

Copyright, Fair Use, Scholarly Communication, etc.

The Facts: Perhaps 10 to 20% of all peer-reviewed articles are published in OA. Almost 10,000 journals listed in the DOAJ.Reed Elsevier and Wiley’s share prices are doing well. Subscription publishing seems in great health.

What is Going On? Full Gold OA is a major threat to the economics of subscription publishers...with significant possible repercussions on the company’s overall performance.

But OA Implementation is Failing: Definition remains vague, probably because objectives are vague. "Europeans are from Mars, Americans are from Venus”. Hybrid model is effectively impossible to monitor. Expectations that OA will address the serial costs crisis are fading away …

The Narrowest And Most Obvious Limits: Applying Fair Use To Appropriation Art Economically Using A Royalty System, Brittani Everson

Catholic University Law Review

No abstract provided.

Reproduction Of Copyrighted Works By Educators And Librarians, United States Copyright Office

Copyright, Fair Use, Scholarly Communication, etc.

Many educators and librarians ask about the fair use and photocopying provisions of the copyright law. The United States Copyright Office cannot give legal advice or offer opinions on what is permitted or prohibited. However, we have published in this circular basic information on some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators.

The Subjects Covered in This Booklet

The documentary materials collected in this circular deal with reproduction of copyrighted works by educators, librarians, and archivists for a variety of uses, including:

• Reproduction for teaching in educational institutions at all …

The Positive And Negative Consequences Of The European Union Court Of Justice's Amazon Decision On International Private Copying And America, Jaclyn Kavendek

Catholic University Law Review

No abstract provided.

Score A Touchdown, Kiss Your Tattoo, And Get Sued For Copyright Infringement?, Darren A. Heitner, Alan Wilmot

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Public Law At The Cathedral: Enjoining The Government, Michael T. Morley

Cardozo Law Review

Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court's ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed's Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.

This Article challenges this …

The Controversy Of Trade In Tobacco And Protection Ofpublic Health, A Study Of Tobacco Control Measures Andimpacts On Trademark Practice: The Stricter, The Better?, Nattapong Suwan-In

Indonesian Journal of International Law

This paper investigates the anticipated trademark problems may result from tobacco control regulations, particularly the warning label requirements implemented in WTO members and the stricter regulation of plain packaging promulgated in Australia (“tobacco measures”). Following the adoption of the Framework Convention on Tobacco Control (“FCTC”) in May 2003 (enforce by February 2005), member countries tend to seek for possibilities to implement and use stricter approach to achieve their public health policy. As the core concept and main goal of WTO is trade liberalization, regardless of types of goods traded among members, whereas the stricter restriction on trademark use means the …