Intellectual Property Law Commons^™

Chinese Patent Law's Statutory Damages Provision: The One Size That Fits None, Xiaowu Li, Don Wang

Washington International Law Journal

The concept of statutory damages was first introduced into the Chinese patent regime in 2001 as a “last-resort” approach for damages calculation in infringement cases. Curiously, in the following 15 years, this last-resort approach became so popular among the courts that it is essentially the exclusive approach today. This Article examines the legal and policy implications of the current statutory damages scheme, and concludes that the existence of statutory damages is fundamentally detrimental to the validity of the Chinese patent system. Therefore, we argue that the statutory damages provision in Article 65 of the Patent Law of China should be …

R&D Spending And Patenting In The Technology Hardware Sector In Nations With And Without Fair Use, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

This working paper uses two common indicators of innovation to see how the technology hardware sector compares in countries with and without fair use. It illustrates that research and development spending by firms in these industries has been higher in countries with fair use, controlling for other firm- and country-level factors. It then shows more patents have been granted to the technology sector in countries that have adopted fair use, relative to patents granted to firms in the same industries in other countries, controlling for other country-level factors.

Substantial Similarity: Kohus Got It Right, Gabriel Godoy-Dalmau

Michigan Business & Entrepreneurial Law Review

This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.

Essentiality And Standards-Essential Patents, Jorge L. Contreras

Utah Law Faculty Scholarship

As creatures of policy language, different SDO definitions of essentiality must be given interpretive deference. Nevertheless, as scholarship and case law in this area expands, a number of common themes emerge in the interpretation of essentiality requirements. One such theme is the economic equation of essentiality with non-substitutability that has arisen in the context of patent pools. Another is the blurred divide between commercial and technical essentiality. A third is the practical necessity of assessing essentiality when hundreds of potentially essential patent claims are at issue. These issues, coupled with the recognized phenomenon of over-declaration, suggests that more efficient, rapid …

Taking Care Of Article 6BisNess: How Belmora Llc V. Bayer Consumer Care Ag Made The Well-Known Mark Doctrine Inevitable In The U.S., Gwen Wei

Washington Journal of Law, Technology & Arts

In Belmora LLC v. Bayer Consumer Care AG, the Fourth Circuit held that a foreign company with no U.S. federal trademark registration for "FLANAX" could nevertheless demand cancellation of its competitor's U.S. trademark for "FLANAX". This holding circumvented Article 6bis of the Paris Convention, a provision which protects trademark owners in signatory countries by way of the well-known mark doctrine. Following Belmora's precedent would allow foreign trademark owners to bypass the U.S.'s existing trademark registration system and so undermine U.S. trademark law's central principle of territoriality. This Article argues that Article 6bis is critical to asserting substantive rights …

Nist Response To Ostp Memo, 2013: Public Access Plan (April 2017)

Copyright, Fair Use, Scholarly Communication, etc.

NIST response to OSTP memo, 2013: Public Access Plan (April 2017)

Comment: Ray V. Espn, Inc. And The Need For Further Development In Copyright Preemption Analysis Of The Right Of Publicity In Professional Sports, Thomas Hwang

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held …

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

UF Law Faculty Publications

Recently, a cacophony of concerns have been raised about the propriety of noncompetition agreements (NCAs) entered into between employers and employees, fueled by media reports of agreements which attempt to restrain low-wage and low-skilled workers, such as sandwich makers and dog walkers. In the lead-up to the passage of the federal Defend Trade Secrets Act of 2016 (DTSA), public policy arguments in favor of employee mobility were strongly advocated by those representing the “California view” on the enforceability of NCAs, leading to a special provision of the DTSA which limits injunctive relief with respect to employee NCAs.

Through our lens …

A Distinction Without A Difference: Convergence In Claim Construction Standards, Laura E. Dolbow

Vanderbilt Law Review

In 2007, a district court found a patent for a medical device valid. While the district court litigation was pending, however, the Patent and Trademark Office ("PTO") found the exact same patent invalid. The Court of Appeals for the Federal Circuit then affirmed both decisions. At first glance, the idea that a patent could be found valid in one forum but invalid in another seems absurd. Yet the law condones these results: district courts and the PTO apply different claim construction standards. The Leahy-Smith America Invents Act of 2011 ("AIA") created new post-grant proceedings at the PTO to challenge patent …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Indiana Law Journal

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current …

The Patently Unexceptional Venue Statute, Paul Gugliuzza, Megan M. La Belle

Faculty Scholarship

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics …

What's The [Irreparable] Harm?: Incentivizing Creativity Through Preliminary Injunctions In Copyright Law, Arielle Matza

Cardozo Law Review

No abstract provided.

"Let's Go Crazy" With Fair Use: Amending The Digial Millennium Copyright Act, Kiran K. Jassal

Washington Journal of Law, Technology & Arts

In Lenz v. Universal, the United States District Court for the Northern District of California ruled that copyright holders must consider fair use before filing takedown notices for infringing content posted on the internet. In the case, Stephanie Lenz uploaded a home video to YouTube of her children dancing to Prince's song "Let's Go Crazy.” In response, Universal Music Corporation submitted a takedown notice to YouTube pursuant to the Digital Millennium Copyright Act (“DMCA”), claiming that Lenz's home video violated its copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of …

Pay-For-Delay: How Brand-Name And Generic Pharmaceutical Drug Companies Collude And Cost Consumer Billions, Raymond J. Prince

South Carolina Law Review

No abstract provided.

The True Price For Your Fake Gucci Bag Is A Life: Why Eliminating Unsafe Labor Practices Is The Right Answer To The Fashioncounterfeit Problem, Angela Terese Timpone

Cardozo Public Law, Policy & Ethics Journal

The note argues that the fight against fashion counterfeiting must shift from traditional legal enforcement to addressing the root cause: unsafe labor practices and human rights violations in counterfeit production. It emphasizes that educating consumers about the societal harms of counterfeiting, such as child labor and dangerous working conditions, is a more effective strategy than punitive measures. By aligning anti-counterfeiting efforts with human rights initiatives, the fashion industry can tackle both issues simultaneously.

The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan

Faculty Scholarship

The following is a law review interview with Professor Srividhya Ragavan on the issues in interpretation of data exclusivity provisions under the TRIPS Agreement, and the impact of data exclusivity on generic drugs.

Watkins' "Patent Trolls: Predatory Litigation And The Smothering Of Innovation" (Book Review), Judson L. Strain

The Christian Librarian

A review of Watkins, W. J., Jr. (2013). Patent trolls: Predatory litigation and the smothering of innovation. Oakland, CA: The Independent Institute. 96 pp. $17.95. ISBN 9781598131703

Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman

Journal Articles

The common element of the articles that make up this Symposium Issue is a refusal to dismiss difficult questions with mechanical formality, to paper over the wrinkles that emerge when the simple models that function in the middle flounder at the edge. As this Symposium Issue will show, those wrinkles have a lot to tell us.

Seeing’S Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And Sculptural Works, Moon Hee Lee

Northwestern University Law Review

Before imposing liability for copyright infringement, a court analyzes whether the defendant’s allegedly infringing work is substantially similar to the copyright-holder plaintiff’s allegedly infringed work. This substantial similarity analysis broadly contains two steps. First, facts and ideas do not receive copyright protection and are filtered out. Second, the two works are compared to see if there is material overlap between the two works’ remaining creative expression—i.e., whether or not the two works are substantially similar. This two-step approach furthers the delicate dual goal of copyright law to keep ideas and facts freely available as raw material for creation while awarding …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Michigan Law Review

Review of What’s Wrong with Copying? by Abraham Drassinower.

Starting From The End: What To Do When Restricted Data Is Released, Marta Teperek, Rhys Morgan, Michelle Ellefson, Danny Kingsley

Copyright, Fair Use, Scholarly Communication, etc.

Repository managers can never be one hundred percent sure of the security of hosted research data. Even assuming that human errors and technical faults will never happen, repositories can be subject to hacking attacks. Therefore, repositories accepting personal/sensitive data (or other forms of restricted data) should have workflows in place with defined procedures to be followed should things go wrong and restricted data is inappropriately released. In this paper we will report on our considerations and procedures when restricted data from our institution was inappropriately released.

P14. Estimating The Effects Of File-Sharing On Movie Box-Office, Zhuang Liu

Western Research Forum

Background:

File-sharing and on-line piracy have caught great public attention. There is a public debate on whether or not we should close torrenting sites like Piratedbay.com. Copyright holders argue yes and claim substantial loss due to filesharing while Pirates claim that file-sharing is welfare-improving and the effects on sale are negligible. Right now no consensus has been reached on how file-sharing affects industry revenue in economics literature.

Methods:

Using a novel dataset of downloads from Bit-Torrent network, this paper quantifies the effects of file-sharing on movie box-office revenue. I estimate a random coefficient demand model of movies to …

Having An Affair May Shorten Your Life: The Ashley Madison Suicides, Sakinah N. Jones

Georgia State University Law Review

Ashley Madison is an online dating service originally designed for people in committed relationships who want to cheat on their partners. In 2015, the website claimed to be “100% discreet.” Ashley Madison’s FAQs promised that its users would never compromise their “safety, privacy or security” and would never have to reveal their identities unless they chose to.

Ashley Madison’s concept attracted over forty million ostensibly anonymous members to its site. In July 2015, a group calling itself The Impact Team (Impact) hacked into Ashley Madison’s parent company, Avid Life Media, Inc. (Avid Life), breaching its security walls and reaching directly …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Copyright And The Use Of Images As Biodiversity Data [Forum Paper], Willi Egloff, Donat Agosti, Puneet Kishor, David J. Patterson, Jeremy A. Miller

Concepts in Animal Parasitology

Taxonomy is the discipline responsible for charting the world’s organismic diversity, understanding ancestor/descendant relationships, and organizing all species according to a unified taxonomic classification system. Taxonomists document the attributes (characters) of organisms, with emphasis on those can be used to distinguish species from each other. Character information is compiled in the scientific literature as text, tables, and images. The information is presented according to conventions that vary among taxonomic domains; such conventions facilitate comparison among similar species, even when descriptions are published by different authors.

There is considerable uncertainty within the taxonomic community as to how to re-use images that …

[University Of Nebraska-Lincoln] Digital Commons Ranked Among World's Best, University Of Nebraska-Lincoln

Copyright, Fair Use, Scholarly Communication, etc.

The University of Nebraska-Lincoln Digital Commons, a collaborative service provided by the University Libraries, was recently ranked among the best digital repositories in the world (as of March 2017).

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Scholarly Articles

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.

This Article represents the first …

Are Trademarks Ever Fanciful?, Jake Linford

Scholarly Publications

A fanciful trademark-a made-up word like Swiffer for mops or Xerox for photocopiers-is presumed to neither describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (tree) and the thing signified by the word (a large woody plant). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use and receives broader protection against infringement than other categories of trademarks.

Research into sound symbolism challenges the theory …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

Vanderbilt Law Review

It is not uncommon for multiple parties in the stream of commercemanufacturers, distributors, end users-to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them-particularly when plaintiffs asserted so-called method patents, which cover specific "steps," or actions-have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device and operated it as intended. The manufacturer can …