Intellectual Property Law Commons^™

Supreme Court Amicus Brief Of Law Professors In Support Of Petitioner Lee V. Tam, No. 15-1293 (Filed Nov. 16, 2016), Christine Farley, Rebecca Tushnet

Scholarly Articles in Law Reviews & Journals

The Federal Circuit’s ruling that the § 2(a) disparagement provision is unconstitutional, if upheld, could allow for numerous provisions of the Trademark Act to be overturned, dismantling the modern trademark system. The trademark system is premised on evaluating speech and making content-based determinations. Granting a trademark registration requires content-based determinations, though not viewpoint-based, as words are evaluated independent of applicants’ individual viewpoints. In no way does the refusal to register a trademark prevent its use or diminish public debate. Rather than facilitating public debate, a trademark registration is a government-issued document that makes it easier for its owner to suppress …

Arbitration Without Law: Choice Of Law In Frand Disputes, Eli Greenbaum

Res Gestae

Recent arbitration between InterDigital and Huawei seems to demonstrate the purported advantages of arbitration as a means of dispute resolution. The warring parties subsumed their multiple suits across different jurisdictions and forums into a single binding arbitral process. By virtue of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), the arbitral award would be enforceable across jurisdictions. But even an agreement to arbitrate requires agreement on certain basic matters. On the most fundamental level, it requires agreement on the substantive and procedural laws governing the dispute, as well as the situs—or location—of the …

Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Law School News Guiding Startups Through Legal Pickles: Law Students Launch Artisan Pickler And Other Businesses To Success 11/09/2016, Jill Rodriques

Life of the Law School (1993- )

No abstract provided.

A Trademark Holder's Hangover: Reconciling The Lanham Act With The Alcohol And Tobacco Tax And Trade Bureau's System Of Designating American Viticultural Areas, Julia Lynn Titolo

Journal of Intellectual Property Law

No abstract provided.

Let's Not Go Crazy: Why Lenz V. Universal Music Corp. Undermines The Notice And Takedown Process Of The Digital Millennium Copyright Act, Mareasa M. Fortunato

Journal of Intellectual Property Law

No abstract provided.

Why Coca-Cola's Fictional Lawsuit Against Coke Zero For Taste Infringement Is A Losing Battle, Jessica Nicole Cox

Journal of Intellectual Property Law

No abstract provided.

I Want My Mp3: Legal And Policy Barriers To A Legitimate Digital Music Marketplace, Shane Wagman, Future Of Music Coalition

Journal of Intellectual Property Law

The Future of Music Coalition (FMC) has provided a voice in Washington, D.C. for musicians since 2000. One of our principal beliefs is that creation, both artistic and technological, is valuable and that artists deserve to be compensated for their work. The amount of this compensation and the mechanisms to facilitate payment are, of course, subject to contracts, market value, and other factors, some experimental or technological in nature. FMC also believes that music fans should be able to lawfully access the music they want without undue barriers or restrictions. Needless to say, finding the appropriate balance between creators' rights …

The Constitutionality Of The Appointment Of Copyright Royalty Judges By The Librarian Of Congress Under The Appointments Clause, John P. Strohm

Journal of Intellectual Property Law

No abstract provided.

Reconciling Social Norms And Copyright Law: Strategies For Persuading People To Pay For Recorded Music, Mark F. Schultz

Journal of Intellectual Property Law

No abstract provided.

Copyright--My Story: A One-Woman Play, Corey Field

Journal of Intellectual Property Law

No abstract provided.

The Promise And Peril Of Collective Listening, Whitney Broussard

Journal of Intellectual Property Law

No abstract provided.

Digital-Age Claims For Old-World Rights, Joseph M. Beck, Allison M. Scott

Journal of Intellectual Property Law

No abstract provided.

Symposium Introduction, Bertis Downs

Journal of Intellectual Property Law

No abstract provided.

Table Of Contents, Vol. 17:1, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet

Notre Dame Law Review

This Article analyzes the First Amendment arguments against section

2(a)’s disparagement bar with reference to the consequences of any

invalidation on the rest of the trademark statute. My fundamental conclusions

are that In re Tam is wrongly reasoned even given the Supreme Court’s

increased scrutiny of commercial speech regulations, and that to hold otherwise

and preserve the rest of trademark law would require unprincipled distinctions

within trademark law. More generally, the Supreme Court’s First

Amendment jurisprudence has become so expansive as to threaten basic

aspects of the regulatory state; the result of subjecting economic regulations

such as trademark registration to …

(In)Valid Patents, Paul Gugliuzza

Faculty Scholarship

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages …

The Intellectual Property Hostage In Trade Retaliation, Sarah R. Wasserman Rajec

Maryland Law Review

Intellectual property law has become bound up in a debate about appropriate remedies for violations of the World Trade Organization Agreement. As an alternative to traditional countermeasures that consist of retaliation under the violated agreement, the World Trade Organization “(WTO”) contemplates that violations of one of its covered agreements may be remedied through “cross-retaliation,” or retaliation under another agreement. One form of cross-retaliation has garnered interest in recent years: the threat to suspend intellectual property rights in response to unrelated trade violations.

Cross-retaliation through intellectual property rights suspension is theoretically appealing for its potential to avoid problems inherent in traditional …

Evaluating The Legal Issues Of Internet Service Providers In China -- A Comparative Copyright Analysis Of Chinese Isps, The U.S. Isps, And Japanese Isps, Yifan Huang

Maurer Theses and Dissertations

This thesis is motivated by a legal challenge in the area of Chinese copyright protection: Baidu, which was considered a disaster by the copyright owners in China. To solve this legal challenge, the Chinese could learn from the legal experience of Japan and the U.S. regarding this issue.

The traditional ISP legal system provides a passive-reactive approach to the secondary copyright liability of ISPs. However, the Baidu issue in China indicates that a passive-reactive ISP model is not able to prevent copyright infringement. Recent cases in China and the U.S. reflect a new trend that the judicial branch adopts an …

Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen

Notre Dame Law Review

One of the most misunderstood and anticompetitive business behaviors in today’s economy is “product hopping,” which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the “improved” branded product.

The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it …

(In)Valid Patents, Paul R. Gugliuzza

Notre Dame Law Review

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment—including the validity ruling and damages award it …

Physicalism And Patent Theory, Christopher A. Cotropia

Law Faculty Publications

United States patent law’s view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for “physicalism” was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to “working” the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

Legal Fictions And The Role Of Information In Patent Law, Craig A. Nard

Vanderbilt Law Review

In his 1974 Nobel Prize Lecture, Freidrich Hayek admonished us, as he did throughout so much of his work, about the limitations of our knowledge and stressed what knowledge we do have should be used "not to shape the results as the craftsman shapes his handiwork, but rather to cultivate a growth by providing the appropriate environment." This analogy-what Hayek referred to as the "pretense of knowledge"-is germane to legal systems where the common law plays a prominent role. Patent law is such a field. Judicial stewardship of the patent space can be seen as an institutional advantage, one that …

Patent Silences, Dan L. Burk

Vanderbilt Law Review

A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go undisclosed; for some things to be included, other things must be excluded. In this article I review the surprising number of doctrines that allow and encourage patent applicants to remain silent about aspects of their inventions. I find that some silences in patents are inadvertent, while some are deliberate; some …

The Structural Implications Of Inventors' Disclosure Obligations, Kevin E. Collins

Vanderbilt Law Review

Disclosure theory posits that inventors must disclose knowledge about their inventions and make that knowledge freely available for certain uses during the term of a patent as part of the price that they pay for their exclusive patent rights. This Article identifies an overlooked implication of this disclosure obligation. The availability of disclosed knowledge itself for free public use during the term of a patent means that there must be limits on inventors' rights: inventors must not be allowed to transform the use of disclosed knowledge itself into infringement through strategic claiming. If they could, inventors would, oddly, be able …

Symposium: The Disclosure Function Of The Patent System, Sean B. Seymore

Vanderbilt Law Review

A fundamental goal of the patent system is to encourage the dissemination of technical knowledge.' The patent system achieves this goal through a quid pro quo-in exchange for the right to exclude, the inventor must fully disclose the technical details of the invention. As soon as a patent document publishes, there is hope that the public will use the technical details disclosed therein to improve upon the invention, to design around it, or to engage in other innovative activities. So while the patentee maintains the right to exclude others from practicing the invention until the patent expires, the technical information …

Physicalism And Patent Theory, Christopher A. Cotropia

Vanderbilt Law Review

United States patent law's view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for 'physicalism" was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to "working" the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the …

Pierson, Peer Review, And Patent Law, Lisa L. Ouellette

Vanderbilt Law Review

When has a researcher done enough to merit a patent? Should the patent belong to the researcher who first suggests an invention or the one who brings it to fruition? The canonical dispute over a fox in Pierson v. Post is used to illustrate the competing policy considerations in deciding when to award a new property right, including providing efficient incentives, setting forth clear rules to guide future behavior, and respecting natural rights. In patent law, all of these considerations suggest that in practice, many patents are awarded too early, before an applicant has demonstrated that the invention is likely …

The Doctrinal Structure Of Patent Law's Enablement Requirement, Jason Rantanen

Vanderbilt Law Review

This Article examines the formal law of enablement, focusing on a perceived split in the enablement doctrine: whether disclosure of a single mode of an invention is necessarily sufficient to satisfy the requirement of enablement or whether the full scope of the claim must be enabled. In examining this split, this Article articulates the enablement inquiry in conceptual terms, identifying two elements of the courts' analyses that are implicit in every enablement determination: the nature of enablement disputes, as challenges and the articulation of a target or targets that must be enabled. , With this understanding in mind, the "full …