Intellectual Property Law Commons^™

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …

Copyright’S Other Functions, Margaret Chon

Faculty Articles

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as …

An Unconventional Approach To Reviewing The Judicially Unreviewable: Applying The Dormant Commerce Clause To Copyright, Donald P. Harris

Kentucky Law Journal

No abstract provided.

Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Osei'tutu

Kentucky Law Journal

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade …

Who Owns Gene Editing? Patents In The Time Of Crispr, Jacob S. Sherkow

Other Publications

New gene-editing technologies, like CRISPR, promise revolutionary advances in biology and medicine. However, several patent disputes in the USA and UK may have complicated who can use CRISPR. What does this mean for the future of gene editing?

Pursuit Of Profit Poisons Collaboration, Jacob S. Sherkow

Other Publications

The CRISPR–Cas9 patent battle demonstrates how overzealous efforts to commercialize technology can damage science.

Panel 2: Liability Issues And 3d Printing, Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Copyright In Pantomime, Brian L. Frye

Cardozo Arts & Entertainment Law Journal

Why does the Copyright Act specifically provide for the protection of "pantomimes"? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of "les pantomimes" and "entertainments in dumb show" in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '"pantomimes " was forgotten. This Article argues …

Disciplining The Right Of Publicity's Nebulous First Amendment Defense With Teachings From Trademark Law, Wee Jin Yeo

Cardozo Arts & Entertainment Law Journal

Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance.

This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments …

Did Vimeo Kill The Radio Star? Dmca Safe Harbors, Pre-1972 Sound Recordings & The Future Of Digital Music, Tatsuya Adachi

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Biblical Fool And The Brander: The Law And Economics Of Propertization In American Trademark Law, William P. Kratzke

Cardozo Arts & Entertainment Law Journal

Isaiah 35:8, which tells of 'fools" upon a highway who shall not err, became authority for the position that the Federal Trade Commission (FTC) should protect fools from deception. This Article examines the biblical passage in context and concludes that it does not support protection of unthinking, credulous people. Ensuing FTC orders based on witnesses' speculation of how fools would construe particular claims actually harmed fools. The FTC retreated Unfortunately, the objective of protecting fools from deception has taken over § 43(a) Lanham Act jurisprudence-but now sellers speculate in competitor lawsuits how fools will construe competitors' claims and undertake to …

Patent System Manipulation: Hedge Funds Abusing Ipr, Poor Patent Quality & Pharmaceutical Monopolies, Kenneth J. Costa

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Pursuit Of Profit Poisons Collaboration, Jacob S. Sherkow

Other Publications

The CRISPR–Cas9 patent battle demonstrates how overzealous efforts to commercialize technology can damage science.

Golden Road Motor Inn, V. Islam, Et. Al., 132 Nev. Adv. Op. 49 (Jul. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that non-compete agreements cannot extend further than what is reasonable and necessary to protect the interests of the employer and cannot create an undue hardship on the employee. It also held that courts may not “blue line” (“blue pencil”) contracts, that is change or delete terms to make the Contract legal. The Court further held that altering player contact information, so long as the information can be restored with minimal disruption to the gaming company does not rise to the level of conversion. Finally, the Court held that a gaming company is not liable for …

Taking Patents, Gregory Dolin, Irina D. Manta

All Faculty Scholarship

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Faculty Scholarship

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter K. Yu

Faculty Scholarship

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to …

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Rectifying Fair Use After Cariou V. Prince: Reviving The Forgotten Statutory Text And Requiring That Unauthorized Copying Be Justified, Rather Than Merely “Transformative”, Daniel J. Brooks

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Korea Database: Wipo-Administered Udrp Decisions, The First Fifteen Years (2000–2014), Ilhyung Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Les Photos Prises Par Les Téléphones Cellulaires Sont-Elles Assez « Originales » Pour Être Protégées Par La Loi Sur Le Droit D'Auteur?, René Pépin

Canadian Journal of Law and Technology

On considérait traditionnellement que l’originalité réside dans les choix faits par le photographe au niveau de la sensibilité du film choisi, de la vitesse de l’obturateur, de la mise au foyer, de la pose du sujet photographié , etc. Mais les caméras incorporées dans les téléphones cellulaires sont si perfectionnées que la prise de photo se fait de façon presque automatique. L’appareil fait seul la mise au foyer, le flash se déclenche au besoin, la vitesse d’obturation est optimale, le cadrage se fait presque seul, etc. C’est justement le grand avantage et le grand attrait de ces appareils. L’utilisateur n’a …

Is There A 'Right To Be Forgotten' In Canada's Personal Information Protection And Electronic Documents Act (Pipeda)?, Michael Rosenstock

Canadian Journal of Law and Technology

In this paper, I argue that PIPEDA could support a version of the right to be forgotten, subject to three important caveats. First, for search engines to meet the threshold applicability test under PIPEDA, their activities (i.e., crawling, indexing, organizing, etc.) must constitute the ‘‘collection, use or disclosure” of personal information. Ascribing such a role to search engines in information dissemination would likely require a court to distinguish the activities of search engines from hyperlinks on websites, which the Supreme Court in Crookes v. Newton determined did not involve control over content. Second, PIPEDA’s ‘‘all-or-nothing approach” means that if search …

Judicial Wisdom Or Patent Envy? The Eleventh, Seventh And Federal Circuits’ Patent Jurisdictional Battle, Xuan-Thao Nguyen

Articles

This article observes a startling new appellate jurisdictional battle waged by regional circuit courts to chip away the Federal Circuit's exclusive jurisdiction in patent cases. The Eleventh Circuit took an unprecedented step by engaging in patent claim construction and infringement under literal infringement analysis and the doctrine of equivalents analysis. In a case of first impression, the Eleventh Circuit asserted that it legitimately has appellate jurisdiction to decide cases involving substantive patent law. Instead of grabbing jurisdiction, the Seventh Circuit, through its Chief Judge, grabbed public attention by advocating for the abolishment of the Federal Circuit's exclusive jurisdiction over patent …

Skating On Thin Ice: The Intellectual Property Ramifications Of A Figure Skater's Public Performance, Vanessa E. Richmond

Marquette Intellectual Property Law Review

None

Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli

Brooklyn Journal of International Law

In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …

Copyright Competition: The Shifting Boundaries Of Convergence Between U.S. And Canadian Copyright Regimes In The Digital Age, David Amar

Brooklyn Journal of International Law

The great copyright debate between protecting creators and encouraging information-sharing has always been a contentious and likely unresolvable battle. However, with the crafting of new legislation designed to rein in unscrupulous sharing in the age of online sharing and piracy, the discussion grows ever more heated. The economies of Canada and the U.S. have always been intertwined, and in a copyright context, this has never been clearer. Since Canada began to appear on the U.S. “Special 301” piracy reports, the two nations have been locked into a system of promulgating ever-more restrictive copyright policy, the logical extreme of which may …

A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia

Brooklyn Journal of International Law

This Note examines the necessity of creating clothing design protection legislation in the United States as a catalyst for up-and-coming designers to compete with European Union luxury conglomerates in reaching the new, emerging middle class in mainland China. It first discusses the current international intellectual property regimes pertinent to creative expression and brand ownership in the context of the fashion industry and clothing design. It looks at how international agreements may provide general harmonization strategies for trademark protection but leave up-and-coming brands and designers out of its framework. It also provides a brief overview of the persistence and prevalence of …

Safeguards For Defendant Rights And Interests In International Intellectual Property Enforcement Treaties, Kimberlee Weatherall

American University International Law Review

No abstract provided.

The Role Of Human Rights In Copyright Enforcement Online: Elaborating A Legal Framework For Website Blocking, Christophe Geiger, Elena Izyumenko

American University International Law Review

No abstract provided.

Reconsidering Copyright's Constitutionality, Graham Reynolds

All Faculty Publications

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these …