Intellectual Property Law Commons^™

How Can The Supreme Court Not “Understand” Patent Law?, Gregory Reilly

Chicago-Kent Journal of Intellectual Property

The Supreme Court does understand patent law. This invited Essay responds to Federal Circuit Judge Dyk’s remarks at the Chicago-Kent Supreme Court IP Review, in particular, his observation that the patent “bar and the academy have expressed skepticism that the Supreme Court understands patent law well enough to make the governing rules” (a view Judge Dyk did not endorse). The idea that the Supreme Court does not understand the law of patents is implausible. Even more generous interpretations of this criticism – that the Supreme Court insufficiently understands innovation policy, insufficiently understands the patent system that Congress desired in creating …

Response To Judge Timothy B. Dyk, Donald R. Dunner

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook

Chicago-Kent Journal of Intellectual Property

This essay is a response to Hon. Timothy B. Dyk, Thoughts on the Relationship Between the Supreme Court and the Federal Circuit, 16 CHI.-KENT J. OF INTELL. PROP. 67 (2016). In it, I address the reasons for the Supreme Court's engagement with patent law. In other words, is the Court interested in patent law itself, or is there something about the Federal Circuit as an institution that has garnered the Court's gaze. I conclude it is a combination of the two. The Court is concerned with certain aspects of patent doctrine, but it is also concerned with the Federal Circuit, …

Reform Or Ruin? Proposals To Amend Section 101, Jorge L. Contreras

Utah Law Faculty Scholarship

No abstract provided.

Counter-Ip Conspiracies: Patent Alienability And The Sherman Antitrust Act, Hannibal Travis

University of Miami Law Review

Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes …

The Defend Trade Secrets Act Isn't An "Intellectual Property" Law, Eric Goldman

Santa Clara High Technology Law Journal

The Defend Trade Secrets Act isn't an "Intellectual Property" Law

Threatened Misappropriation Of Trade Secrets: Making A Federal (Dtsa) Case Out Of It, David Bohrer

Santa Clara High Technology Law Journal

Threatened Misappropriation of Trade Secrets: Making a Federal (DTSA) Case out of it

Identifying The Trade Secrets At Issue In Litigation Under The Uniform Trade Secrets Act And The Federal Defend Trade Secrets Act, Richard F. Dole, Jr.

Santa Clara High Technology Law Journal

Identifying the Trade Secrets at Issue in Litigation Under the Uniform Trade Secrets Act and the Federal Defend Trade Secrets Act

Debating Employee Non-Competes And Trade Secrets, Sharon K. Sandeen, Elizabeth A. Rowe

Santa Clara High Technology Law Journal

Debating Employee Non-Competes and Trade Secrets

Developing Criteria To Establish Trusted Digital Repositories, John Faundeen

Copyright, Fair Use, Scholarly Communication, etc.

This paper details the drivers, methods, and outcomes of the U.S. Geological Survey’s quest to establish criteria by which to judge its own digital preservation resources as Trusted Digital Repositories. Drivers included recent U.S. legislation focused on data and asset management conducted by federal agencies spending $100M USD or more annually on research activities. The methods entailed seeking existing evaluation criteria from national and international organizations such as International Standards Organization (ISO), U.S. Library of Congress, and Data Seal of Approval upon which to model USGS repository evaluations. Certification, complexity, cost, and usability of existing evaluation models were key considerations. …

Let’S Stop Playing Games: A Consistent Test For Unlicensed Trademark Use And The Right Of Publicity In Video Games, Arlen Papazian

William & Mary Business Law Review

Courts cannot agree on how to handle cases centered on unlicensed use of a trademark or celebrity’s likeness in video games. Two tests have arisen as the primary standards by which to judge such cases: the Rogers test and the transformative-use test. However, in an area of law muddled by multiple standards and the inconsistent application of those standards to a relatively new medium, neither test can adequately balance mark holder rights with the constitutional rights of video game developers. In this turmoil, large video game companies take advantage of marks and licenses knowing the rightful holders will have little …

Art Crimes?: Theoretical Perspectives On Copyright Protection For Illegally-Created Graffiti Art, Jamison Davies

Maine Law Review

This paper begins by examining whether illegally-created graffiti art is entitled to copyright protection under the current copyright law. Analogies are made to other forms of unwanted expression, fraud and obscenity, and their historical and current copyright status. The remainder of the paper uses graffiti art as a lens through which to examine various theoretical explanations of copyright, both as descriptive theories of production and as normative theories of protection.

A New Perspective On Frand Royalties: Unwired Planet V. Huawei, Jorge L. Contreras

Utah Law Faculty Scholarship

In Unwired Planet v. Huawei, Mister Justice Colin Birss of the UK High Court of Justice (Patents) has issued a detailed and illuminating opinion regarding the assessment of royalties on standards-essential patents (SEPs) that are subject to FRAND (fair, reasonable and non-discriminatory) licensing commitments. Among the important and potentially controversial rulings in the case are: (1) there is but a single FRAND royalty rate applicable to any given set of SEPs and circumstances, (2) neither a breach of contract nor a competition claim for abuse of dominance will succeed unless a SEP holder’s offer is significantly above the true FRAND …

Zea Books: Monograph Publishing Imprint Of The University Of Nebraska-Lincoln Libraries, Paul Royster

Copyright, Fair Use, Scholarly Communication, etc.

A short history and tour of Zea Books, the University of Nebraska-Lincoln Libraries monograph publishing imprint.

A discussion of book production costs, comparisons with APCs.

Suggestions and advice for would-be publishers.

Food Safety And Security In The Monsanto Era: Peering Through The Lens Of A Rights Paradigm Against An Onslaught Of Corporate Domination, Saby Ghoshray

Maine Law Review

Since our earliest ancestors’ desire for a better hunting weapon to procure food or a better storage facility to avoid spoilage, food safety and security has shaped human social and technological evolution like no other essential element. The need to procure food has shaped our civilization since the first human graced our planet. Food continues to be a pivotal force in humankind’s saga for life and death. Yet, despite stratospheric progress in scientific application surrounding food, food security and safety for all citizens continues to elude mankind. Why do some enjoy a feast, while others suffer in famine? This essay …

Tc Heartland: The Patent Venue Question Is Informed By Personal Jurisdiction Issues, Richard Samp

University of Miami Business Law Review

No abstract provided.

Patent Venue Exceptionalism After Tc Heartland V. Kraft, Ana Santos Rutschman

University of Miami Business Law Review

No abstract provided.

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

University of Miami Business Law Review

“Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

Internet Killed The Radio Star: Preventing Digital Broadcasters From Exploiting The Radio Music License Committee Rate To The Detriment Of Songwriters, Alexander Reed Speer

Georgia Journal of Law & Technology

No abstract provided.

The Drug Short: A New Mechanism For Creating Financial Incentives For The Discovery Of Invalid Pharmaceutical Patents, Christopher Edward Neill

Georgia Journal of Law & Technology

No abstract provided.

Caught Between A Mark And A Hard Place: Resolving U.S.-Cuban Trademark Disputes In A Post-Embargo World, Mary Grace Griffin

Georgia Journal of Law & Technology

No abstract provided.

Keep It Secret, Keep It Safe: Protecting Trade Secrets By Revisiting The Reasonable Efforts Requirement In Federal Law, Molly Hubbard Cash

Georgia Journal of Law & Technology

No abstract provided.

Using Signal Theory To Determine Nonobviousness Of Inventions, Michael O'Brien, Idonah Molina

Georgia Journal of Law & Technology

No abstract provided.

Intellectual Property Rights In The Kingdom Of Saudi Arabia In Light Of Sharia And The Trips Agreement, Abdulrahman Alabdulkarim

SJD Dissertations

This study aims to illustrate the current state of intellectual property rights (IPR) in Saudi Arabia in light of certain international agreements, specifically TRIPS, as well as Sharia law, that have informed the Saudi legislature in its creation and handling of intellectual property matters. Various matters of IP today may be debated among Saudi's Islamic jurists, which in turn may bring such issues into conflict with Sharia. Such conflicts over matters of IP cannot be dismissed lightly by the Saudi legislators. They must determine the proper enforcement and protection of IRP as stipulated by modern Saudi IP laws and/or by …

Two Steps Forward, One Step Back: The Defend Trade Secrets Act Of 2016 And Why The Computer Fraud And Abuse Act Of 1984 Still Matters For Trade Secret Misappropriation, Patrick J. Manion

Journal of Legislation

No abstract provided.

Cheddar, Not Swiss: A Director’S Interest In Copyright, Amanda Schwartz

Seton Hall Circuit Review

No abstract provided.

Internet Tv: (Hopefully) Coming To A Computer Screen Near You, Nicholas Pellegrino

Seton Hall Circuit Review

No abstract provided.

Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian

Michigan Telecommunications & Technology Law Review

Autonomous and connected vehicles (ACVs) are a transformational force for humanity. It is highly likely that some owners of ACVs will circumvent their vehicle software to expose unauthorized functionality, known as “jailbreaking”. This would trigger copyright liability, the extent of which would be dependent upon the copyright system’s various rulemaking processes and common law interpretations. This note explores the world of software “jailbreaking”, with its roots in smartphone unlocking, and extrapolates that to ACVs. Some compelling (and at times dangerous) scenarios are contemplated, and recommendations are made for consumers, technologists, manufacturers, and policy makers.

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Nevada Law Journal Forum

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

Remarks On The Problem Of Scope In Ip, Mark P. Mckenna

Washington Journal of Law, Technology & Arts

These remarks were given as the keynote talk at The Art and Science of the Deal Conference at the University of Washington School of Law.