Intellectual Property Law Commons^™

Road Map To Revolution? Patent-Based Open Science, Lee Petherbridge

Maine Law Review

The contemporary approach to innovation in the life sciences relies on a patent-based proprietary model. Limitations on patent rights and business concerns often focus innovation to markets where the near-term monetary rewards are highest. This is “efficient” under an austere understanding of the term, but the proprietary model can be problematic from a practical perspective because it may not focus innovation to certain deserving markets. This Article contends that the property rights conferred by patent law may still serve as a positive base for innovation directed to underserved markets. The comparatively strong rights conferred by patent law provide upstream or …

A Virtue-Centered Approach To The Biotechnology Commons (Or, The Virtuous Penguin), David W. Opderbeck

Maine Law Review

The instrumentalist emphasis of the current biotechnology intellectual property rights (IPR) debate is not surprising. In the American tradition, intellectual property law has long been justified primarily by instrumentalist concerns. Thomas Jefferson famously acceded to the “embarrassment of patent and copyright monopolies because he believed a limited monopoly would encourage the production of new scholarship and inventions. The framers' willingness to allow this embarrassment for the greater good is enshrined in the Intellectual Property Clause of the U.S. Constitution. Countless judicial opinions refer to intellectual property law as a tool that provides necessary incentives to creators and innovators. Intellectual property …

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

Maine Law Review

Inventor Ivan owns a patent on a new Gizmo. He has spent a substantial portion of his time and resources to develop the Gizmo. He has also spent thousands of dollars on his patent attorneys to obtain the patent. Ivan had to wait over two years for the patent application to be processed and approved. But it was all worth it. Our patent laws grant Ivan a negative right-the right to exclude others from practicing his invention during the period of the patent. The local university is using Ivan's invention to further its own research. The university's research will allow …

Adoption Of The Bayh-Dolye Act In Developed Countries: Added Presure For A Broad Research Exemption In The United States?, Michael S. Mireles

Maine Law Review

Numerous developed countries, most if not all members of the Organization of Economic Cooperation and Development (OECD), including Japan, France, the United Kingdom, Germany, Austria, Denmark, Norway, Portugal, Spain, and Finland, have or are considering adopting legislation similar to the Bayh-Dole Act. These countries apparently believe that passage of legislation similar to the Bayh-Dole Act will lead to the transfer of government funded research results from the university laboratory to the marketplace and other economic activity. In the United States, the birthplace of the Bayh-Dole Act (the Act), it is not entirely clear whether its passage is the direct result …

Honest Copying Practices, Joseph P. Fishman

Notre Dame Law Review

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, …

Laws On Erasure Of Online Information: Canada, France, European Union, Germany, Israel, Japan, New Zealand, Norway, Portugal, Russia, Spain, United Kingdom, Luis Acosta

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary by Luis Acosta, Chief, Foreign, Comparative, and International Law Division II, Law Library of Congress (United States), Global Legal Research Center

This report describes the laws of twelve jurisdictions that have some form of remedy available enabling the removal of online data based on harm to individuals’ privacy or reputational interests, including but not limited to defamation. Six of the countries surveyed are within the European Union (EU) or the European Economic Area, and therefore have implemented EU law. Five non-EU jurisdictions are also surveyed.

Comparative analysis across jurisdictions presents terminological challenges, because legal language across jurisdictions seems …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Notre Dame Law Review

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

(Un)Common Law Protection Of Certification Marks, Michelle B. Smit

Notre Dame Law Review

Part I of this Note defines and examines the general principles of certification marks. From that foundation, Part II provides an overview of the case law on unregistered common law certification marks. Part III analyzes the reasons why abuses of certification marks would increase under a commonlaw regime and posits that certification marks, therefore, should only exist under federal law. Finally, Part IV proposes several adjustments that should be made to the current certification mark registration system in order to address existing shortcomings that affect both consumers and third-party businesses.

Paving The Road To Personalized Medicine: Recommendations On Regulatory, Intellectual Property And Reimbursement Challenges, Lori Knowles, Westerly Luth, Tania M. Bubela

Office of the Provost

Personalized medicine (PM) aims to harness a wave of 'omics' discoveries to facilitate research and discovery of targeted diagnostics and therapies and increase the efficiency of healthcare systems by predicting and treating individual predispositions to diseases or conditions. Despite significant investment, limited progress has been made bringing PM to market. We describe the major perceived regulatory, intellectual property, and reimbursement challenges to the development, translation, adoption, and implementation of PM products into clinical care. We conducted a scoping review to identify (i) primary challenges for the development and implementation of PM identified in the academic literature; (ii) solutions proposed in …

Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas

Michigan Telecommunications & Technology Law Review

The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it …

Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman

The Business, Entrepreneurship & Tax Law Review

The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision—which is not incorporated into any state trade secret law—relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a lawsuit. The effect of …

The Defend Trade Secrets Act Whistleblower Immunity Provision: A Legislative History, Peter Menell

The Business, Entrepreneurship & Tax Law Review

The Defend Trade Secrets Act of 2016 ("DTSA") was the product of a multi-year effort to federalize trade secret protection. In the final stages of drafting the DTSA, Senators Grassley and Leahy introduced an important new element: immunity "for whistleblowers who share confidential information in the course of reporting suspected illegal activity to law enforecement or when filing a lawsuit, provided they do so under seal." The meaning and scope of this provision are of vital importance to enforcing health, safety, civil rights, financial market, consumer, and environmental protections and deterring fraud against the government, shareholders, and the public. This …

Recalibrating Patent Venue, Colleen V. Chien, Michael Risch

Maryland Law Review

For most of patent law’s 200-plus year history, patent holders could sue only in the district inhabited by the defendant. In 1990, the United States Court of Appeals for the Federal Circuit decided that the scope of permissible venue extended to all districts with personal jurisdiction over the defendant. In recent years, patentees have flocked to certain districts, fueling the widespread perception that patentees, particularly those that do not practice their patents, called non-practicing entities (“NPEs”), are abusing forum. Responsive to these concerns, Congress and the courts have moved to reinstate a more restrictive rule, culminating in the Supreme Court’s …

Symposium Keynote: The Dtsa And The New Secrecy Ecology, Orly Lobel

The Business, Entrepreneurship & Tax Law Review

The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

Spec Kit 357 Libraries, Presses, And Publishing November 2017, Laurie N. Taylor, Brian W. Keith, Chelsea Dinsmore, Meredith Morris-Babb

Copyright, Fair Use, Scholarly Communication, etc.

Many Association of Research Libraries (ARL) members have robust and long-standing publishing activities, often in collaboration with or running parallel to the press of the larger institutional entity. As reported in the Association of American University Presses (AAUP) 2015–2016 annual report, 30 AAUP member presses are in libraries. Eighty-one institutions are both ARL and AAUP members, and at 21 of those institutions, the press reports to the library. Other libraries—including Amherst College Press and the University of Cincinnati Press—launched new presses within libraries. Most of the 123 ARL member libraries are engaged in publishing or publishing support activities such as …

Creative Communities And Intellectual Property Law, Laura A. Heymann

Popular Media

No abstract provided.

Connect The Dots: Patents And Interdisciplinarity, Michal Shur-Ofry

University of Michigan Journal of Law Reform

This Article unravels a troubling paradox in the ecosystem of innovation. Interdisciplinarity is widely recognized as a source of valuable innovation and a trigger for technological breakthroughs. Yet, patent law, a principal legal tool for promoting innovation, fails to acknowledge it in an explicit, consistent manner. Moreover, although the scientific understanding of the significance of interdisciplinarity for innovation increasingly relies on big data analyses of patent databases, patent law practically ignores patent data as a source of information about interdisciplinary innovation. This Article argues that patent law should connect the dots—explicitly recognize interdisciplinarity as a positive indication when deciding whether …

“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao

Fordham Law Review

The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support. Consequently, while esports regulation is likely to emulate many aspects of traditional sports governance, the esports industry is fraught with challenges that inhibit sophisticated ownership and capital investment. Domestic regulation is complicated by underlying intellectual property ownership and ancillary considerations such as fluctuations in a video …

Wild Westworld: Section 230 Of The Cda And Social Networks’ Use Of Machine-Learning Algorithms, Catherine Tremble

Fordham Law Review

This Note argues that Facebook’s services—specifically the personalization of content through machine-learning algorithms—constitute the “development” of content and as such do not qualify for § 230 immunity. This Note analyzes the evolution of § 230 jurisprudence to help inform the development of a revised framework. This framework is guided by congressional and public policy goals and creates brighter lines for technological immunity. It tailors immunity to account for user data mined by ISPs and the pervasive effect that the use of that data has on users—two issues that courts have yet to confront. This Note concludes that under the revised …

Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu

Faculty Scholarship

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' withdrawal and contends that the TPP will exert considerable influence regardless of whether it is dead or alive.

The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral …

Honest Copying Practices, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, …

Understanding Nautilus's Reasonable-Certainty Standard: Requirements For Linguistic And Physical Definiteness Of Patent Claims, Gary M. Fox

Michigan Law Review

Patent applicants must satisfy a variety of requirements to obtain a patent from the U.S. Patent and Trademark Office (USPTO). The definiteness requirement forces applicants to describe their inventions in unambiguous terms so that other inventors will understand the scope of granted patent rights. Although the statutory provision for the definiteness requirement has been stable for many years, the Supreme Court’s decision in Nautilus v. Biosig Instruments altered the doctrine. The Court abrogated the Federal Circuit’s insoluble-ambiguity standard and replaced it with a new reasonable-certainty standard. Various district courts have applied the new standard in different ways, indicating the need …

Brief For 72 Professors Of Intellectual Property Law As Amici Curiae In Support Of Respondents In Oil States Energy V. Greene's Energy, Gregory Reilly, Mark Lemley, Arti Rai

All Faculty Scholarship

This is a brief of 72 IP professors opposing the claim in Oil States that the IPR procedure is unconstitutional.Petitioner argues that only a court – indeed, only a jury – has the power to decide that the United States Patent and Trademark Office erred in granting a patent. That argument flies in the face of the history of patent law and this Court’s precedents.Patents are a creature of statute: as early as 1834, this Court specifically recognized that there is no “natural” or common law right to a patent. Rather, under its Article I power to establish a patent …

The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor

Chicago-Kent Law Review

No abstract provided.

Small Sustainability Supply: How Small Business And Lean Manufacturing Can Change Supply Chains, Carlos Lopez

Sustainable Development Law & Policy

No abstract provided.

Benefitting From Sustainable Development, Victoria Frappaolo

Sustainable Development Law & Policy

No abstract provided.

Batteries Included: Incentivizing Energy Storage, Lindsay Breslau, Michael Croweak, Alan Witt

Sustainable Development Law & Policy

Distributed Energy Storage (“DES”) technologies that allow households and businesses to store substantial amounts of electricity on site are rapidly advancing and could soon have dramatic impacts on the nation’s electricity generation, transmission, and distribution markets. These technologies could provide numerous benefits, including enhanced energy security, grid stability, and greater support for renewable generation technologies, but several obstacles are slowing their adoption throughout the country. Among these obstacles are stubbornly high manufacturing costs and the potential impacts of DES development on utilities and the traditional energy regulatory framework. Fortunately, policymakers in California, New York, Hawaii, and some other states are …

Appraising The Role Of The Ifc And Its Independent Accountability Mechanism: Community Experiences In Haiti’S Mining Sector, Kate Nancy Taylor

Sustainable Development Law & Policy

No abstract provided.

Green Is Good: How Green Bonds Cultivated Into Wall Street’S Environmental Paradox, Luke Trompeter

Sustainable Development Law & Policy

When the European Investment Bank issued the first green bond in 2007, few imagined this debt instrument would attract mainstream investors. Designed to finance projects ranging from climate change prevention to clean transportation development, green bonds were geared for socially responsible investors concerned with our planet’s sustainability. However, by 2015, green bonds were issued by major corporations like Apple and municipalities like New York City at a record $40 billion. Major players on Wall Street have taken notice and look to cash in on the rapidly growing green bond market. With this new influx of investment and the bonds’ tax-exempt …