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Intellectual Property Law Commons™

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2016

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Full-Text Articles in Intellectual Property Law

United States Environmental Protection Agency Response To The Office Of Science And Technology Policy Memo, 2013: Public Access Plan (November 2016) Nov 2016

United States Environmental Protection Agency Response To The Office Of Science And Technology Policy Memo, 2013: Public Access Plan (November 2016)

Copyright, Fair Use, Scholarly Communication, etc.

EPA response to OSTP memo, 2013: Public Access Plan (November 2016)

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The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan Nov 2016

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …

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Dynamic Patent Disclosure, Jeanne C. Fromer Nov 2016

Dynamic Patent Disclosure, Jeanne C. Fromer

Vanderbilt Law Review

Those who tout the role of disclosure as a benefit of the patent system emphasize-as the Supreme Court has-that the information in patents "add[s] to the general store of knowledge [and is] of such importance to the public weal that the Federal Government is willing to pay the high price of ... exclusive use for its disclosure, which disclosure ... will stimulate ideas and the eventual development of further significant advances in the art." As I excavate in this Article, the current state of patent disclosure-which many think is poor and does not achieve its objective of stimulating innovation-is impoverished …

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Patent Disclosures And Time, Timothy R. Holbrook Nov 2016

Patent Disclosures And Time, Timothy R. Holbrook

Vanderbilt Law Review

Patents by their very nature are pregnant with considerations of time. The exclusive rights they afford only last for a finite period- generally from issuance until twenty years from the filing date of the application. Moreover, since patents necessarily engage with the evolution of technology, patents reflect various "snap shots" in time that reflect the state of the art at a particular moment. Patent law must constantly wrestle with time. Many of these topics have been explored extensively in both judicial decisions and the literature. The most obvious example of considering the temporal aspect of patent law is ... obviousness. …

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Disclosing Designs, Jason Du Mont, Mark D. Janis Nov 2016

Disclosing Designs, Jason Du Mont, Mark D. Janis

Vanderbilt Law Review

The disclosure function figures prominently in many accounts of the utility patent system. But what of its role in the design patent system? Should it be dismissed as trivial? And if so, what are the practical consequences for design patent doctrine in view of the fact that the doctrines that implement the disclosure function in utility patent law also apply to design patents by statutory mandate? The disclosure theory posits that patent documents disclose technical information that serves as a quid pro quo for the patent grant. Even aside from controversies about whether the disclosure function is robust for utility …

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Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt Nov 2016

Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

Vanderbilt Law Review

One aspect of Justice Stephen Breyer's discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

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Contextualizing Patent Disclosure, Colleen V. Chien Nov 2016

Contextualizing Patent Disclosure, Colleen V. Chien

Vanderbilt Law Review

One of the main justifications for a patent system is that patents disclose useful technical information that others can learn from. However, patents are not performing this function well. The average patent is written in legalese, uses vague language, and is hard to connect to commercial activity. Legal scholars have responded with calls to improve the patent document through better writing, more examples, and better enforcement of patent doctrines. The courts have sought to ensure that patent specifications are robust and justify the grant of a monopoly. This follows from the Supreme Court's characterization of technical teachings within a patent …

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Nontechnical Disclosure, J. Jonas Anderson Nov 2016

Nontechnical Disclosure, J. Jonas Anderson

Vanderbilt Law Review

One of the primary goals of the patent system is the broad dissemination of technical knowledge. Patent law forces inventors to disclose how their inventions work. Inventors seeking a patent are required to describe "the manner and process of making and using" the patented invention. Additionally, a patent must "enable any person skilled in the art.., to make and use" the invention. Despite this explicit statutory disclosure requirement, patent law could do better at ensuring that patents convey useful information to the public. Academics have vigorously debated about whether and to what degree the patent system performs its disclosure function. …

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Community Rights To Public Art, Cathay Y. N. Smith Nov 2016

Community Rights To Public Art, Cathay Y. N. Smith

Faculty Law Review Articles

In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural …

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Whither Gene Patenting And The Patenting Of Diagnostic Methods Post-Mayo And Myriad? The Need For Certainty In Navigating The High Seas Of Policy, Cheng Lim Saw Nov 2016

Whither Gene Patenting And The Patenting Of Diagnostic Methods Post-Mayo And Myriad? The Need For Certainty In Navigating The High Seas Of Policy, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

This paper is prompted by a series of recent high-profile decisions emanating from the apex courts in the US and Australia – namely, Mayo and Myriad – on the patent eligibility of gene-based inventions. Adopting a comparative approach, this paper critically examines whether isolated gene sequences and diagnostic methods qualify as patentable subject matter in several leading jurisdictions, including the US, Australia, Europe and the UK. An attempt will also be made, after carefully considering various arguments on both sides of the policy debate, at predicting what the future might hold (or, perhaps more accurately, at suggesting what the future …

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Exclusive Groove: How Modern Substantial Similarity Law Invites Attenuated Infringement Claims At The Expense Of Innovation And Sustainability In The Music Industry, Mark Kuivila Nov 2016

Exclusive Groove: How Modern Substantial Similarity Law Invites Attenuated Infringement Claims At The Expense Of Innovation And Sustainability In The Music Industry, Mark Kuivila

University of Miami Law Review

As of 2015, the American entertainment market was worth about $600 billion, and it is projected to substantially exceed that figure in coming years. The global entertainment industry is worth about $2 trillion, meaning the U.S. is responsible for over a quarter of total global entertainment revenue. These statistics illustrate the staggering impact of the American entertainment industry on the global markets for film, television, and music. The American music industry is particularly dominant in its global market, earning half of world-wide sync revenues and accounting for nearly a third of all global music revenue. Entertainment is clearly the United …

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Copyrights From A Child's Perspective, Monica Vining Oct 2016

Copyrights From A Child's Perspective, Monica Vining

Journal of Intellectual Property Law

No abstract provided.

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Is Liability Just A Link Away? Trademark Dilution By Tarnishment Under The Federal Trademark Dilution Act Of 1995 And Hyperlinks On The World Wide Web, Martha Kelley Oct 2016

Is Liability Just A Link Away? Trademark Dilution By Tarnishment Under The Federal Trademark Dilution Act Of 1995 And Hyperlinks On The World Wide Web, Martha Kelley

Journal of Intellectual Property Law

No abstract provided.

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"Within The Limits Of The Constitutional Grant": Constitutional Limitations On The Patent Power, Edward C. Walterscheid Oct 2016

"Within The Limits Of The Constitutional Grant": Constitutional Limitations On The Patent Power, Edward C. Walterscheid

Journal of Intellectual Property Law

No abstract provided.

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Justice Between Authors, Dawn C. Nunziato Oct 2016

Justice Between Authors, Dawn C. Nunziato

Journal of Intellectual Property Law

Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …

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Table Of Contents, Vol 9:2, Journal Of Intellectual Property Law Oct 2016

Table Of Contents, Vol 9:2, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

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Finding The Public Domain: The Copyright Review Management System, Melissa Levine Oct 2016

Finding The Public Domain: The Copyright Review Management System, Melissa Levine

Copyright, Fair Use, Scholarly Communication, etc.

Historically, copyright review has been uncoordinated and has taken place on a modest scale. The Copyright Review Management System (CRMS) changes that. 1 CRMS was supported by the Institute of Museum and Library Services over three National Leadership Grants. It was led by the University of Michigan in collaboration with 19 other highly dedicated research libraries. Together, we developed a system to train and coordinate reviewers to assess the copyright status of digitized books held in the HathiTrust Digital Library. Over the course of the three interrelated grants that make up the CRMS project, we developed expertise in managing a …

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Privatization Of The Judiciary, Eldar Haber Oct 2016

Privatization Of The Judiciary, Eldar Haber

Seattle University Law Review

The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime to combat copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by granting rights …

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A Brave New Borderless World: Standardization Would End Decades Of Inconsistency In Determining Proper Personal Jurisdiction In Cyberspace Cases, Jonathan Spencer Barnard Oct 2016

A Brave New Borderless World: Standardization Would End Decades Of Inconsistency In Determining Proper Personal Jurisdiction In Cyberspace Cases, Jonathan Spencer Barnard

Seattle University Law Review

While various courts and numerous legal professionals have addressed the issue of inconsistent application of personal jurisdiction in cyberspace cases, the Supreme Court has yet to discuss the impact that technology might have on the analysis of personal jurisdiction; thus, many details remain unresolved. This Note examines the varying jurisdictional splits between the lower district courts, the courts of appeals, and the federal circuit court of appeals in determining the proper approach to take when dealing with Internet jurisdiction. After an examination of several key cases, this Note will explain why the Supreme Court, or the Legislature, should adopt an …

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Circumvention Of Geoblocking, Marketa Trimble Oct 2016

Circumvention Of Geoblocking, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble gave her presentation Circumvention of Geoblocking at the "Law, Borders, and Speech" conference, held at Stanford Law School on Oct. 24, 2016.

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Normalizing Copyright In The Electronic Environment, Vicenç Feliú Oct 2016

Normalizing Copyright In The Electronic Environment, Vicenç Feliú

Villanova Law Review (1956 - )

No abstract provided.

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A Shattered Visage: The Fluctuation Problem With The Recognized Stature Provision In The Visual Artists Rights Act Of 1990, Keshawn M. Harry Oct 2016

A Shattered Visage: The Fluctuation Problem With The Recognized Stature Provision In The Visual Artists Rights Act Of 1990, Keshawn M. Harry

Journal of Intellectual Property Law

No abstract provided.

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Endangered Research: The Proliferation Of E-Books And Their Potential Threat To The Fair Use Clause, Jason Cohen Oct 2016

Endangered Research: The Proliferation Of E-Books And Their Potential Threat To The Fair Use Clause, Jason Cohen

Journal of Intellectual Property Law

No abstract provided.

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"Profiting At My Expense": An Analysis Of The Commercialization Of Professors' Lecture Notes, Ashley T. Barnett Oct 2016

"Profiting At My Expense": An Analysis Of The Commercialization Of Professors' Lecture Notes, Ashley T. Barnett

Journal of Intellectual Property Law

No abstract provided.

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Price Controls Through The Back Door: The Parallel Importation Of Pharmaceuticals, A. Bryan Baer Oct 2016

Price Controls Through The Back Door: The Parallel Importation Of Pharmaceuticals, A. Bryan Baer

Journal of Intellectual Property Law

No abstract provided.

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Xml Schemas And Computer Language Copyright: Filling In The Blanks In Blank Esperanto, Douglas E. Phillips Oct 2016

Xml Schemas And Computer Language Copyright: Filling In The Blanks In Blank Esperanto, Douglas E. Phillips

Journal of Intellectual Property Law

No abstract provided.

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Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg Oct 2016

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Journal of Intellectual Property Law

Part One of this article briefly defines some terms employed throughout and provides a short review of trademark principles. Parts Two and Three employ different methodologies to illuminate the functionality doctrine and the significance of Traffix. Part Two develops the etymology of important functionality standards including those considered in Traffix. It highlights links among the standards, and between the standards and evidence of functionality. Part Two's etymology suggests Part Three's economic methodology. The strength of the economic lens amplifies and simplifies the doctrine while its limitations help to explain why the functionality doctrine has been problematic and why Traffix is …

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Table Of Contents, Vol 9:1, Journal Of Intellectual Property Law Oct 2016

Table Of Contents, Vol 9:1, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

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Private Property For Public Use: The Federal Trademark Dilution Act And Anticybersquatting Consumer Protection Act As Violations Of The Fifth Amendment Takings Clause, Brian C. Smith Oct 2016

Private Property For Public Use: The Federal Trademark Dilution Act And Anticybersquatting Consumer Protection Act As Violations Of The Fifth Amendment Takings Clause, Brian C. Smith

Journal of Intellectual Property Law

No abstract provided.

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Combating The Lure Of Impropriety In Professional Sports Industries: The Desirability Of Treating A Playbook As A Legally Enforceable Trade Secret, Rice Ferrelle Oct 2016

Combating The Lure Of Impropriety In Professional Sports Industries: The Desirability Of Treating A Playbook As A Legally Enforceable Trade Secret, Rice Ferrelle

Journal of Intellectual Property Law

No abstract provided.

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