Intellectual Property Law Commons^™

Martha Graham, Professor Miller And The "Work For Hire" Doctrine: Undoing The Judicial Bind Created By The Legislature, Nancy S. Kim

Georgia Journal of Law & Technology

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, the author advocates abolishing the all-or-nothing concept …

Patent Drafter Estoppel: Why Didn't Sage Products Create A New Foreseeability Limitation On The Application Of The Doctrine Of Equivalents?, Christopher M. Kaiser

Georgia Journal of Law & Technology

No abstract provided.

Employment Agreements For The Inventing Worker: A Proposal For Reforming Trailer Clause Enforceability Guidelines, Peter Caldwell

Georgia Journal of Law & Technology

No abstract provided.

Intellectual Property And The Protection Of Industrial Design: Are Sui Generis Protection Measures The Answer To Vocal Opponents And A Reluctant Congress?, Regan E. Keebaugh

Georgia Journal of Law & Technology

No abstract provided.

Machinima And Copyright Law, Matthew Brett Freedman

Georgia Journal of Law & Technology

No abstract provided.

Digital Photography And The Internet, Rethinking Privacy Law, Jim Barr Coleman

Georgia Journal of Law & Technology

No abstract provided.

Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell

Georgia Journal of Law & Technology

No abstract provided.

Is The Monopoly Theory Of Trademarks Robust Or A Bust?, Harold R. Weinberg

Georgia Journal of Law & Technology

The monopoly theory of trademarks would antitrustize trademark law by incorporating antitrust legal precedent, economics, policies, reasoning, and terminology. The theory is comprised of six interrelated postulates contained in trademark law and scholarship. The postulates are (1) trademarks are monopolies; (2) trademark monopolies are like illegal antitrust monopolies because both harm competition; (3) trademark law is like antitrust law because both value competition; (4) trademark law is like antitrust law because both apply economic methodology to product markets; (5) an antitrust lens can help one understand trademarks and trademark law; and (6) an antitrust lens can help one decide whether …

The Hotchkiss Unobviousness Standard: Early Judicial Activism In The Patent Law, Edward C. Walterscheid

Georgia Journal of Law & Technology

No abstract provided.

Images Of Public Places: Extending The Copyright Exemption For Pictorial Representations Of Architectural Works To Other Copyrighted Works, Andrew Inesi

Georgia Journal of Law & Technology

No abstract provided.

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

Georgia Journal of Law & Technology

This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as cases ranging from White-Smith Music to Eldred suggest. Although this introduction has stressed the economic irrationality of copyright law, could it actually be that within copyright decisions there is an implicit economic sensibility?

Deficiencies And Proposed Recommendations To The False Marking Statute: Controlling Use Of The Term 'Patent Pending', Bonnie Grant

Georgia Journal of Law & Technology

No abstract provided.

Pricey Purchases And Classy Customers: Why Sophisticated Consumers Do Not Need The Protection Of Trademark Laws, Meaghan E. Goodwin

Georgia Journal of Law & Technology

No abstract provided.

The Biotechnology Process Patent Act Of 1995: Providing Unresolved And Unrecognized Dilemmas In U.S. Patent Law, Becca Alley

Georgia Journal of Law & Technology

No abstract provided.

There Is A Better Way: It's Time To Overhaul The Model For Participation In Private Standard-Setting, Robert M. Webb

Georgia Journal of Law & Technology

No abstract provided.

International Trademark Prosecution Streamlined: The Madrid Protocol Comes Into Force In The United States, Jeffrey M. Samuels, Linda B. Samuels

Georgia Journal of Law & Technology

No abstract provided.

Innovations Palpitations: The Confusing Status Of Geographically Misdescriptive Trademarks, Mary Lafrance

Georgia Journal of Law & Technology

No abstract provided.

How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford

Georgia Journal of Law & Technology

This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social costs and …

The Price Of Social Norms: Towards A Liability Regime For File-Sharing, Daniel J. Gervais

Georgia Journal of Law & Technology

The paper starts by asking whether P2P file-sharing of music can be stopped. Based on a discussion of (a) the interaction among law (regulation), technology and the market and (b) relevant social norms, the paper takes the view that it may not be possible to stop file-sharing. The paper then turns to an analysis of the economics and structure of a viable licensing model that could be implemented now without legislative or technological changes. The paper argues that P2P licensing could be good business. The paper ends with a brief look at (a) whether the licensing model could be exported …

University Research-A New Defense Under The Patent Law, Judith L. Curry, Bruce E. O'Connor

Georgia Journal of Law & Technology

No abstract provided.

Shifting The Burden Of Proving Patentability Vel Non In View Of Dickinson V. Zurko, Dawn-Marie Bey

Georgia Journal of Law & Technology

This paper addresses the Patent Office's misinterpretation of the Supreme Court's ruling in Dickinson v. Zurko regarding the applicability of the factual review standards of the Administrative Procedure Act (APA) to Patent Office findings. More particularly, in accordance with this misinterpretation, recent guidelines promulgated by the Patent Office violate the APA and controlling precedent.

To date, the proper procedures for prosecuting a patent application have been carefully honed through a myriad of statutes, rules, and controlling legal opinions. The resulting procedures are set forth in exemplary prose in the Manual of Patent Examining Procedure (MPEP) issued and revised periodically by …

Indifference And Secondary Liability For Copyright Infringement, Richard G. Kunkel

Santa Clara High Technology Law Journal

Indifference and Secondary Liability for Copyright Infringement

Copyright: Walking The Tightrope, Bethany Kenyon, Elizabeth Dyer

Library Services Faculty Posters

Librarians often struggle with copyright questions from patrons. After winning a copyright consultation with copyright specialist Barbara Ingrassia during the 2015 North Atlantic Health Sciences Libraries (NAHSL) Scholarship Raffle, UNE librarians decided it was high time to conquer our fears and create a tool to help with the balancing act that is Fair Use. This poster describes the development and promotion of a Fair Use Checklist.

Patent Law, Copyright Law, And The Girl Germs Effect, Ann Bartow

Law Faculty Scholarship

[Excerpt] "Inventors pursue patents and authors receive copyrights.

No special education is required for either endeavor, and nothing

precludes a person from being both an author and an inventor.

Inventors working on patentable industrial projects geared

toward commercial exploitation tend to be scientists or engineers.

Authors, with the exception of those writing computer code, tend

to be educated or trained in the creative arts, such as visual art,

performance art, music, dance, acting, creative writing, film

making, and architectural drawing. There is a well-warranted

societal supposition that most of the inventors of patentable

inventions are male. Assumptions about the genders …

The Risks Of Revolution: Ethical Dilemmas In 3d Printing From A Us Perspective, Erica L. Neely

Philosophy and Religion Faculty Scholarship

Additive manufacturing has spread widely over the past decade, especially with the availability of home 3D printers. In the future, many items may be manufactured at home, which raises two ethical issues. First, there are questions of safety. Our current safety regulations depend on centralized manufacturing assumptions they will be difficult to enforce on this new model of manufacturing. Using current US law as an example, I argue that consumers are not capable of fully assessing all relevant risks and thus continue to require protection any regulation will likely apply to plans, however, not physical objects. Second, there are intellectual …

Authorized Personnel Only: The Patent Exhaustion Doctrine After Helferich, Jeffrey W. Schmidt

Notre Dame Law Review

This Note will analyze the framework utilized by the Federal Circuit in Helferich to assess whether or not it follows Supreme Court precedent along with the public policies that govern American patent law. Part I provides a brief introduction to the patent exhaustion doctrine and the public policies surrounding the doctrine and patent law in general and discusses important Supreme Court cases that defined the doctrine. Part II discusses Helferich in detail and lays out some of the major differences between the approaches taken by the Federal Circuit and the one taken by the district court. Part III analyzes the …

The Influence Of Special Interest Groups On Copyright Law And Policy—A Comparison Of The Legislative Processes In The United States And Switzerland, Michael P. Kunz

Washington Journal of Law, Technology & Arts

In April 2016, the Office of the United States Trade Representative placed Switzerland on the Watch List of its 2016 Special 301 Report, which contains an annual review of the state of intellectual property rights protection and enforcement in U.S. trading partners around the world. According to the Report, the decision to put Switzerland on the Watch List was premised on U.S. concerns regarding specific difficulties in Switzerland’s system of online copyright protection and enforcement, particularly the “Logistep” ruling issued by the Federal Supreme Court of Switzerland in 2010. Although the Swiss authorities have acknowledged the difficulties mentioned in the …

A Comparative Law Perspective On Intermediaries' Direct Liability In Cloud Computing Context -- A Proposal For China, Shi Xu

Maurer Theses and Dissertations

This dissertation is motivated by two questions: How does the emergence of cloud-computing technology impact major countries’ copyright law regarding the issue of intermediaries’ direct liability? What should Chinese legislature body learn from those countries regarding this issue? Answering the first question lays a foundation for answering the second question.

Usually, a cloud-computing intermediary’s specific activity may possess risk of violating a copyright holder’s right of reproduction, right of communication to the public and right of distribution. Comparatively, that intermediary can raise defenses under the exhaustion doctrine and the fair use doctrine. Analysis on these two topics consists of two …

Brief Of Amici Curiae - 56 Professors Of Law And Economics In Support Of Petition For Writ Of Certiorari In Tc Heartland Llc V. Kraft Foods Group Brands Llc, No. 16-341, Colleen V. Chien, Mark Lemley, Brian Love, Arti K. Rai

Historical and Topical Legal Documents

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant …

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …