Intellectual Property Law Commons^™

Právní Otázky Geoblokingu ("Legal Issues Of Geoblocking"), Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented on the topic of geoblocking and related legal issues for The International Literary and Artistic Association (ALAI) on June 9, 2017 in Prague, Czech Republic.

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

The Threat Of Termination In A Dematerialized Art Market, Peter J. Karol

Law Faculty Scholarship

Conceptual and video artworks generally resist reduction to a single, material object. Nevertheless, there remains a robust market for them. Buyers of conceptual pieces will often acquire plans and certificates of authenticity, essentially instructions for realizing the work, rather than a particular physical article. Collectors of video art, for their part, generally attain a copy of the video embedded in a disc or file of some sort. In other words, they attain digital information. Because these artworks lack a core tangible object, however, they depend heavily on copyright licenses to be realized, performed or shown. This, in turn, makes them …

Damages For Partial Product Design Patent Infringement, Patryk Oskar Rogowski

Touro Law Review

No abstract provided.

Datamining The Meaning(S) Of Progress, Jake Linford

Scholarly Publications

No abstract provided.

Innovation And Reverse Payments, Ramsi A. Woodcock

Florida State University Law Review

Settlements of patent litigation between branded and generic drug makers that include a promise by the generic maker to stay out of the market, sometimes in exchange for a ‘reverse’ payment, increase the profits of drug makers at the expense of consumers. Some commentators argue that drug makers will invest these profits in innovation, ultimately making consumers better off. Drug market data suggest, however, that the resulting gains to consumers may still be insufficient to offset consumer losses from delayed access to generics. Even when innovation is taken into account, antitrust can most efficiently eliminate the risk of consumer harm …

Antimicrobial Resistance (Amr) And Multidrug Resistance (Mdr): Overview Of Current Approaches, Consortia And Intellectual Property Issues, Andrew Jenner, Niresh Bhagwandin, Stanley P. Kowalski

Law Faculty Scholarship

The supply of new diagnostics and treatments is insufficient to keep up with the increase in antimicrobial resistance (AMR) and multidrug resistance (MDR) as older medicines are used more widely and microbes develop resistance to them. At the same time, significant quantities of antibiotics are used on patients and animals that do not need them, while others who do need them lack access.

Effective responses to AMR/MDR require effort by both the public and private sectors to develop and disseminate new diagnostics, vaccines and treatments on a global scale, as well as to adapt them to local needs. This calls …

The Conflation Of Patent Eligibility And Obviousness: Alice's Substitution Of Section 103, Paxton M. Lewis

Utah OnLaw: The Utah Law Review Online Supplement

Since the birth of the abstract ideas concept, the judiciary has struggled to define abstract idea and analyze what is patentable under this exception to Section 101. The Supreme Court’s decision in Alice has not clarified the complexities that have arisen from the abstract ideas category. Instead, it falls in line with the warnings of the dissent in Flook, where Justice Stewart advises against the majority’s use of “inventive application” because it conflates the Section 101 and Section 103 inquiries. In order to avoid such conflation, the Alice framework cannot be adopted. Step one of the framework should be …

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

Sturm College of Law: Faculty Scholarship

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, …

Method Patent Exceptionalism, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

Inventive methods and processes have long received hostile treatment by the patent system. Courts have long been skeptical of these claims because of the potential for overbreadth of the patent, particularly if the method is delineated in functional terms. This categorical skepticism, however, fails to consider the technological specificity of such concerns. For example, the pharmaceutical industry views method claims, particularly methods of use and treatment, as weaker, second-tier forms of protection. While important, patents on the chemical compound itself offers greater downstream protection over all uses of the compound.

Nevertheless, process claims have received differential treatment in patent law. …

The Federal Circuit’S Acquiescence (?), Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

The U.S. Court of Appeals for the Federal Circuit is a unique institution within the federal judiciary. It is the only intermediate appellate court with nationwide jurisdiction over particular subject matter. Only the Supreme Court has the same national geographic scope. Of particular importance is its appellate jurisdiction over cases arising under the patent laws. It is also unique that, given its patent expertise, it also oversees an expert agency, the United States Patent and Trademark Office. This Essay explores the relationship of the Federal Circuit vis-à-vis the Supreme Court and the USPTO over three periods of time. It first …

Printing The Future: Implications Of 3d Printing, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

What I am going to talk about today is sort of an aggregation of a lot of things I have already published, or am thinking about, that relates to how 3D printing challenges our patent system and how the patent system could respond doctrinally now and, in other ways, that we could theorize we could do. We should be frightened about some of those steps, however. I will then discuss some of the consequences that flow from these arguments. And so, I will skip through some of the earlier slides as to 3D printing. I think people know what that …

Patently Insane For Patents: A Judge-By-Judge Analysis Of The Federal Circuit’S Post-Alice Patentable Subject Matter Eligibility Of Abstract Ideas Jurisprudence, Matthew B. Hershkowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

The Information Age exposed the U.S. patent system to patentable subject matter that it had never considered before. In particular, software tested the courts’ understanding of patentable subject matter under section 101 of title 35 of the U.S. Code. The Supreme Court grappled with this issue in its Alice Corp. v. CLS Bank International decision, which greatly affected the patentability of software. However, the Supreme Court did not define the precise contours of patentable subject matter in Alice, and as a result, the Federal Circuit has wrestled with its meaning ever since. This Note discusses the approaches Federal Circuit judges …

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

Articles

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive-but nonetheless underappreciated-tool f or solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal …

Cyber Operations And The Humanization Of International Humanitarian Law: Problems And Prospects, Giacomo Biggio

Canadian Journal of Law and Technology

The aim of International Humanitarian Law (‘‘IHL”) is to regulate the conduct of hostilities while, at the same time, balancing the two overarching concepts of military necessity and humanity. While the principle of military necessity allows a party to a conflict to exercise any amount of armed violence which is necessary for the accomplishment of a military purpose, the principle of humanity aims at minimizing the amount of physical violence caused to combatants and the civilian population. From the late 19th century onwards the principle of humanity has progressively eroded the domain of military necessity, influencing the creation and interpretation …

Updating The Agenda For Academic Libraries And Scholarly Communications, Clifford Lynch

Copyright, Fair Use, Scholarly Communication, etc.

This issue of C&RL is focused on scholarly communication, and it seems appropriate, in this invited guest editorial, to step back and examine the broader agenda that academic and research libraries need to consider today in engaging with scholarly communications as a way of framing the issue. My view is that this agenda is ripe for re-thinking. The overall environment has changed significantly in the last few years, underscoring the growing irrelevance of some long-held ideas, and at the same time, clearly identifying new and urgent priorities. What I hope to do here is to summarize very succinctly my thoughts …

The Defend Trade Secrets Act: Why Interpreting The New Law On Its Own Terms Promotes Uniformity, Patrick Ruelle

Marquette Intellectual Property Law Review

Trade secrets, a category of intellectual property recognized at state and federal law, are integral parts of many corporations’ intellectual property portfolios. A trade secret is a type of intellectual property that is not disclosed by its owner, and is therefore unlike patents, trademarks, or copyrights—all types of information that are disclosed to the public. As a result, trade secrets may represent a viable alternative to patents and copyrights since its value is derived from its secrecy.

In the United States, the laws governing trade secrets have typically been the offspring of the state common law. As each state developed …

A Genealogy Of Open Access: Negotiations Between Openness And Access To Research / Une Généalogie De L'Open Access : Négociations Entre L'Ouverture Et L'Accès À La Recherche, Samuel A. Moore

Copyright, Fair Use, Scholarly Communication, etc.

Open access (OA) is a contested term with a complicated history and a variety of understandings. This rich history is routinely ignored by institutional, funder and governmental policies that instead enclose the concept and promote narrow approaches to OA. This article presents a genealogy of the term open access, focusing on the separate histories that emphasise openness and reusability on the one hand, as borrowed from the open-source software and free culture movements, and accessibility on the other hand, as represented by proponents of institutional and subject repositories. This genealogy is further complicated by the publishing cultures that have evolved …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Prioritising Human Development In African Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

The global intellectual property structure has been criticised for requiring developing nations to adopt intellectual property standards that are appropriate for industrialised countries. Some commentators have observed that industrialised nations, such as the United States, developed their economies by borrowing from others, but that through the use of globalised intellectual property standards, they have effectively limited other nations from doing the same. This article does not aim to revisit the question of the suitability of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether, as a general proposition, intellectual property rights should be expanded …

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles, 18.71-18.76), J. Janewa Osei-Tutu

Faculty Publications

No abstract provided.

Valuing Residual Goodwill After Tradmark Forfeiture, Jake Linford

Scholarly Publications

Trademarks contribute to an efficient market by helping consumers find products they like from sources they trust. This information-transmission function of trademarks can be upset if the law fails to reflect both how trademark owners communicate through marks and how consumers understand and use them. But many of trademark law’s forfeiture mechanisms (the ways a trademark can lose protection) ignore or discount consumer perception. This failure threatens not only to increase consumer search costs and consumer confusion, but also to distort markets.

For example, trademark protection may be forfeited when the mark owner interrupts or abandons use, even though consumers …

Incentivizing Graffiti: Extending Copyright Protection To A Prominent Artistic Movement, Sara Cloon

Notre Dame Law Review Reflection

This Note outlines a brief history of graffiti, emphasizes the growing importance of graffiti as an accepted and widespread artistic movement, and applies the copyright requirements under the Copyright Act and the Visual Artists Rights Act to graffiti. Finally, this Note argues that under an incentive-based theory of intellectual property, copyright law should not exclude graffiti when it already fits within statutory law, as this would create inefficiency and contradiction in copyright law, which is meant to continually expand to accept new art forms.

Design Patent Litigation: Is "Obvious To Try" Unavailable For Validity Challenges Under 35 U.S.C. § 103?, 16 J. Marshall Rev. Intell. Prop. L. 173 (2017), Scott Locke

UIC Review of Intellectual Property Law

Ten years ago, the United States Supreme Court shook the foundation of U.S. patent law when it announced that a patented invention could be invalidated because the claimed combination of heightened the thr whether a person of ordinary skill in the art would deem a combination of features obvious to try can be measured against a perceived a likelihood of success for achieving a purpose. But the concept does not easily translate to design patents. Those types of patents are directed to ornamental features, which by definition cannot be dictated by functionality, and thus, the success of a combination cannot …

Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja

UIC Review of Intellectual Property Law

This article considers the current licensing regime used to control the exploitation of copyright protected works within the online interactive entertainment sector—particularly virtual worlds including multiplayer online games—to further author new copyrightable works. This article aims to identify the gaps that have arisen on account of the nature of these subsequently authored works and the potential for their exploitation under the said licensing regime. Users and the proprietors of virtual worlds often end up in conflict over the monetization and commercialization of user generated content on account of contradictory yet overlapping rights created by copyright law when controlled by contract …

Reinvention, Sean B. Seymore

Notre Dame Law Review

It is axiomatic that once an invention has been patented, it cannot be patented again. This aligns with the quid pro quo theory of patents—the public would receive nothing new in exchange for the second patent. Enforcing this rule is done through the novelty requirement, which bars a patent if the invention is already known. But the rule is hard to justify if the original patentee reneged on the quid pro quo by inadequately disclosing how to make and use the invention. The inadequate disclosure suggests that the original inventor did not invent anything and the public received no benefit …

Testing The White Hat Effect In Patent Litigation, Bernard Chao, Roderick O’Dorisio

Sturm College of Law: Faculty Scholarship

Ideally, juries assess cases on the evidence presented at trial. To the extent that they are unrelated to the merits, the identities of the parties or their individual stories should not matter. But jurors are human, and both academics and practicing lawyers have long believed that how parties frame their cases to the jury can influence outcomes.' We examine two such frames common to patent law. First, we look at whether accused infringers can improve their chances of prevailing by being the aggressor. Prior studies have observed that accused infringers that file declaratory judgment actions to vindicate their rights win …

Finding A Fair Balance For The Right Of Publicity And First Amendment Protections, Christine Digregorio

Touro Law Review

No abstract provided.

2016 Trademark Year In Review, Mark P. Mckenna, Shelby Niemann

Notre Dame Law Review Reflection

This brief Essay reviews some of the most significant developments in trademark law during the past year. In most cases, we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of section 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of section 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of B & B Hardware; (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.

If The Shoe Fits: The Effects Of A Uniform Copyright Design Test On Local Fashion Designers, 17 J. Marshall Rev. Intell. Prop. L. 262 (2017), Elise Ruff

UIC Review of Intellectual Property Law

Fashion design is a revolutionary walking art form, becoming increasingly accessible to consumers. The increase in accessibility is, in part, due to the presence of technology and social media platforms. While this allows the consumer to have access to a designer’s goods at unprecedented levels, this has led to an increase in claims of copyright infringement against large fashion corporations. This comment discusses how local-based fashion designers have lodged complaints against large fashion corporations of stealing their designs. Additionally, this comment discusses a recent United States Supreme Court case Star Athletica, L.L.C., v. Varsity Brands, Inc., and the implications of …