Intellectual Property Law Commons^™

Marketa Trimble Becomes The Inaugural Samuel S. Lionel Professor Of Intellectual Property Law, Marketa Trimble

Nevada Law Journal

No abstract provided.

Beyond Ip–The Cost Of Free: Informational Capitalism In A Post Ip Era, Guy Pessach

Osgoode Hall Law Journal

Critical copyright scholarship rightly emphasizes the social costs of ordering cultural production through proprietary intellectual property law regimes. This scholarship also celebrates the virtues of free content and free access, particularly in digital domains. The purpose of this article is to question this critique, which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. This article argues that the drawbacks of cultural commodification and informational capitalism are also apparent in market-oriented media environments that are based on free distribution of content. The article makes a novel contribution by untying the seemingly Gordian knot binding …

Comparative Patent Quality, Colleen Chien

Faculty Publications

One of the most urgent problems with the US patent system is that there are too many patents of poor quality. Most blame the US Patent and Trademark Office (USPTO) – its mistakes, overly generous grant rate, and lack of consistency. But, the quality and quantity of patents in force is the product of three sets of decisions: to submit an application of certain quality (by the applicant), to grant the patent (by the patent office), and to renew a patent and keep it in force (by the applicant/patentee). Startling, there is no consensus way to measure patent quality. This …

Recalibrarting Patent Venue, Colleen V. Chien, Michael Risch

Faculty Publications

For most of patent law’s 200-year plus history, the rule has been that patentholders are permitted to sue defendants only in the district they inhabit. In 1990, the Federal Circuit changed this by enlarging the scope of permissible venue to all districts with personal jurisdiction over the defendant. Since then, patentees have flocked to fewer districts, and in 2015, brought more than 40% of their cases in a single rural district with 1% of the US population, the Eastern District of Texas. Fueled in particular by concerns that non-practicing entities (NPEs), who bring the majority of cases in the Eastern …

Trending @ Rwu Law: Linn F. Freedman's Post: The Goal Of Gender Equality In Cybersecurity 08/23/2016, Linn F. Freedman

Law School Blogs

No abstract provided.

"I'Ll See": How Surveillance Undermines Privacy By Eroding Trust, Robert H. Sloan, Richard Warner

Santa Clara High Technology Law Journal

"I'll See": How Surveillance Undermines Privacy By Eroding Trust

Can Digital Speech Loosen The Gordian Knot Of Reputation Law?, Elizabeth A. Kirley

Santa Clara High Technology Law Journal

Can Digital Speech Loosen the Gordian Knot of Reputation Law?

After O2 Micro: The Court's Evolving Duty To Map Words To Things, Peter E. Gratzinger

Santa Clara High Technology Law Journal

After O2 Micro: The Court's Evolving Duty to Map Words to Things

A La Recherche Du “Sens” Perdu: Copyrightable Creativity Deconstructed, Thomas M. Byron

Pace Law Review

The primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth …

Research Impact Of Paywalled Versus Open Access Papers, Éric Archambault, Grégoire Côté, Brooke Struck, Matthieu Voorons

Copyright, Fair Use, Scholarly Communication, etc.

This note presents data from the 1science OAIndx on the average of relative citations (ARC) for 3.3 million papers published from 2007 to 2009 and indexed in the Web of Science (WoS). These data show a decidedly large citation advantage for open access (OA) papers, despite them suffering from a lag in availability compared to paywalled papers.

There is an abundant literature on the citation advantage of OA papers, starting with a succinct communication by Lawrence (2001). Several studies have been listed by SPARC, the majority of which support the idea that when papers are openly available, they are more …

The Path Towards Clear And Convincing Digital Privacy Rights, Frederick V. Greene

Open Access Dissertations

This study was a legal based inquiry to determine to what extend digital privacy rights are adequately protected by existing law. Because the major statutory vehicle that guides privacy rights in America was passed in 1986, the courts have had to address issues not contemplated by the statute. This study reviews the rulings of all twelve United States Courts of Appeal to determine whether or not digital privacy rights are expanded or limited. Comparisons are made between various circuits and different regions of the country. Three questions are addressed in this study, summarized as; a question about the current status …

Comment To The Sec In Support Of The Enhanced Disclosure Of Patent And Technology License Information, Colleen Chien, Jorge L. Contreras, Carol Corrado, Stuart Graham, Deepak Hegde, Arti K. Rai, Saurabh Vishnubhakat

Historical and Topical Legal Documents

Intangible assets like IP constitute a large share of the value of firms, and the US economy generally. Accurate information on the intellectual property (IP) holdings and transactions of publicly-traded firms facilitates price discovery in the market and reduces transaction costs. While public understanding of the innovation economy has been expanded by a large stream of empirical research using patent data, and more recently trademark information this research is only as good as the accuracy and completeness of the data it builds upon. In contrast with information about patents and trademarks, good information about IP licensing is much less publicly …

"Transplanting" Organ Donors With Printers: The Legal And Ethical Implications Of Manufacturing Organs, Katherine A. Smith

Akron Law Review

Three-dimensional (3D) printing is no longer restricted to simple inanimate objects; that conjecture is a thing of the past. With advancements in many areas of science, living tissues and organs can now be printed through a technique called 3D bioprinting. This technology could potentially save the lives of the 120,000 Americans in need of an organ transplant. However, whether or not a 3D bioprinted organ qualifies as a “human organ” under the National Organ Transplant Act (NOTA) and whether 3D bioprinted organs require federal approval could either delay or completely bar this technology’s promise. The Ninth Circuit’s Flynn v. Holder …

Curated Innovation, Lital Helman

Akron Law Review

The regulation of innovation-intensive industries is a critical issue for both innovation policy and regulation. In this Article, I propose a new framework to the way innovation-intensive industries are regulated.

My proposal is a four-pronged model, which I term “Curated Innovation.” In the first stage, policymakers would set a standard that would represent the outcome the regulation seeks to achieve. Second, policymakers would launch a competition, where innovative technologies or methods would race to meet the standard that was defined. Third, policymakers would select the methods or technologies that come closest to meeting the standard and create an incentive in …

Are Universities Special?, Shubha Ghosh

Akron Law Review

Universities offer a space for development of ideas, exploration of basic research, and productive outlets for creation and invention. As such, they are key to the innovation environment within which intellectual property laws operate. Although scholarship has focused on universities as institutions counter to other institutions like markets and government, less attention has been paid to universities as organizations, a site for governance through detailed rules and commonly understood norms. When understood as an organization, universities display three overlapping, but distinct models: one of pure research, one of pure commercialization, and one of public purpose. These three models together define …

Intellectual Property Revenue Sharing As A Problem For University Technology Transfer, Jennifer Carter-Johnson

Akron Law Review

The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by patent licensing with inventors. Many scholars have debated the effectiveness of university implementation of this requirement, and, indeed, the low rate of invention disclosure by academic researchers to the university is often a bottleneck in the technology-transfer process.

Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole Act requirements have explored faculty-inventor motivations. However, in most cases, university inventions are joint products of a group of university members including not only faculty but also post-doctoral researchers …

What's The Harm Of Trademark Infringement?, Rebecca Tushnet

Akron Law Review

Abstract

Over the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.

Brief Amicus Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett

Court Briefs

No. 15-866
Star Athletica, LLC v. Varsity Brands, Inc.

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of Argument:

In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The …

Patent Privateers And Antitrust Fears, Matthew Sipe

Michigan Telecommunications & Technology Law Review

Patent trolls are categorically demonized as threatening American innovation and industry. But whether they are a threat that antitrust law is equipped to deal with is a complex question that depends on the particular type of patent troll and activities they engage in. This Article looks specifically at privateer patent trolls: entities that acquire their patents from operating entities and assert them against other industry members. In the particular context of privateering, antitrust law is almost certainly not the proper legal solution. Privateering does raise significant issues: circumventing litigation constraints, evading licensing obligations, and raising the cost and frequency of …

Branded: Trademark Tattoos, Slave Owner Brands, And The Right To Have "Free" Skin, Shontavia Johnson

Michigan Telecommunications & Technology Law Review

Though existing for several millennia in various cultures, body modification through tattooing is becoming more popular in the United States. Twenty percent of Americans have at least one tattoo, and among Millennials this number grows to almost forty percent. As the popularity of tattoos has increased in recent years, so too have questions revolving around concepts of intellectual property and the plausible limitations of any rights stemming therefrom. This Article addresses the implications, for both the tattooist and the tattooed, of using trademarked designations as tattoos. Neither the courts nor Congress have definitively answered the question of how traditional trademark …

Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster

Michigan Telecommunications & Technology Law Review

This Essay is the first analysis of a recent entrant on the patent landscape: the Invalidity Assertion Entity (IAE). IAEs engage in rent-seeking by demanding payment from patent holders in exchange for not attempting to invalidate their patents through administrative action before the U.S. Patent and Trademark Office. The response to IAEs has been uniformly negative. Reflexive proposals have been raised in Congress (unsurprisingly) to terminate the IAE business model. In contrast to the common response to IAEs, this Essay discusses how profit-driven IAEs may generate socially beneficial externalities and why legislating to end the IAE business model is imprudent.

Plausible Pleading In Patent Suits: Predicting The Effects Of The Abrogation Of Form 18, Kyle R. Williams

Michigan Telecommunications & Technology Law Review

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect. The changes included, among other things, the abrogation of the Appendix of Forms, which contained templates for summons, complaints, answers, and other litigation documents. Prior to its abrogation, Form 18—a template for a “Complaint for Patent Infringement”—was widely utilized by patent plaintiffs in crafting infringement complaints. Form 18 was created during the Conley pleading regime, when conclusory allegations were generally sufficient to survive a motion to dismiss. Accordingly, the sample allegations in Form 18 were conclusory and bare-bones in nature. Under Conley, plaintiffs who followed this …

Full Federal Circuit Curbs On Sale Bar's Threat To Patents, Zong-Qiang Bill Tian, Matthew D'Amore

Cornell Law Faculty Publications

No abstract provided.

The Role Of Geoblocking In The Internet Legal Landscape, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble gave her presentation titled The Role of Geoblocking in the Internet Legal Landscape at the 12th International Conference on Internet, Law & Politics held in Barcelona on July 7th & 8th, 2016.

How Open Science Helps Researchers Succeed, Erin Mckiernan, Philip E. Bourne, C. Titus Brown, Stuart Buck, Amye Kenall, Jennifer Lin, Damon Mcdougall, Brian A. Nosek, Karthik Ram, Courtney K. Soderberg, Jeffrey R. Spies, Kaitlin Thaney, Andrew Updegrove, Kara H. Woo, Tal Yarkoni

Copyright, Fair Use, Scholarly Communication, etc.

Open access, open data, open source, and other open scholarship practices are growing in popularity and necessity. However, widespread adoption of these practices has not yet been achieved. One reason is that researchers are uncertain about how sharing their work will affect their careers. We review literature demonstrating that open research is associated with increases in citations, media attention, potential collaborators, job opportunities, and funding opportunities. These findings are evidence that open research practices bring significant benefits to researchers relative to more traditional closed practices.

Jay-Z Has 99 Problems But A Sample Ain’T One, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman

Scholarly Articles

The Supreme Court’s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected the “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has been little rigorous empirical examination of …

Institutional Strategies For Open Educational Resources (Oers): Report Of A Cni Executive Roundtable Held April 3 & 4, 2016, Coalition For Networked Information

Copyright, Fair Use, Scholarly Communication, etc.

At the Spring 2016 CNI Membership Meeting in San Antonio, Texas, we held an Executive Roundtable on the topic of Institutional Strategies for Open Educational Resources (OERs). While this is clearly a topic of growing interest in higher education institutions, we did not anticipate the overwhelming response by CNI member institutions seeking to attend this roundtable. To meet the demand, we offered two sessions of the roundtable (with different institutions participating in each) on Sunday, April 3, and Monday, April 4. We were fortunate to have a student OER advocate from one of our participating institutions join one of the …

2016 Cardozo Public Law, Policy, And Ethics Journal Symposium

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Indiana Law Journal

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …