Intellectual Property Law Commons^™

The Data-Pooling Problem, Michael Mattioli

Articles by Maurer Faculty

American innovation policy as expressed through intellectual property law contains a curious gap: it encourages individual research investments, but does little to facilitate cooperation among inventors, which is often a necessary precondition for innovation. This Article provides an in-depth analysis of a policy problem that relates to this gap: increasingly, public and private innovation investments depend upon the willingness of private firms and institutions to cooperatively pool industrial, commercial, and scientific data. Data holders often have powerful disincentives to cooperate with one another, however. As a result, important research that the federal government has sought to encourage through intellectual property …

Fair Use Is Good For Creativity And Innovation, Bill Patry

Joint PIJIP/TLS Research Paper Series

Commenting on legal debates in other countries is usually bad manners. When, however, the debates concern a law from your own country, and that law is being misrepresented, it may be of service to set the record straight. The record, based on almost 300 years of Anglo-American case law and the experiences of those of us who apply fair use every day in our jobs, demonstrates that fair use is good for creativity and innovation, and in practice works well. You don’t have to take my word for it; if you are willing to put the time in, and have …

Reevaluating Intellectual Property Law In A 3d Printing Era., Lucas S. Osborn

Scholarly Works

No abstract provided.

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Faculty Publications & Other Works

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

Charitable Trademarks, Leah Chan Grinvald

Scholarly Works

Charity is big business in the United States. In 2015, private individuals or entities donated over $350 billion, which accounted for approximately two percent of the gross domestic product in the United States. Even though this seems like big money, these donations were split among over 1.5 million organizations. And each year, the number of charitable organizations grows and therefore, the competition for public donations increases. In part to succeed in such competition, some charitable organizations have turned to branding and trademarks as a way to differentiate their entities and to encourage donations. Drawing from the for-profit branding and trademarking …

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

Scholarly Works

At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working …

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

Scholarly Works

With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

Amending Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

The Supreme Court’s recent treatment of the law of patent eligibility has introduced an era of confusion, lack of administrability, and, ultimately, risk of under-investment in research and development. As a result, patent law — and in particular the law governing patent eligibility — is in a state of crisis. In this Article I show why, despite this crisis, it is highly unlikely that the Supreme Court will correct itself and solve these problems. I therefore proceed to consider how Congress might — consistent with its constitutional authority — correct these problems through appropriate legislation. I identify principles that should …

Panel 1: Perspectives On Transactions In Comic Books, David Gallaher, Larry Hama, Lillian Laserson, Matthew Tynan, Thomas Crowell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Counterfeiting, Couture, And The Decline Of Consumer Trust In Online Marketplace Platforms, Joseph M. Forgione

NYLS Law Review

No abstract provided.

Disentangling The Right Of Publicity, Eric E. Johnson

Faculty Articles

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person's name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is. This Article explains how, in the absence of a clear enunciation of its …

Patent Submission Policies, Ryan T. Holte

Akron Law Faculty Publications

This Article focuses on the early stage of commercialization communication when a third-party inventor owns an invention protected by a patent that a manufacturer-commercializer may profit from producing—long before any allegation of infringement or litigation. These submission-review communications by unaffiliated third parties are covered by corporate policies known as “patent submission policies.” They are the figurative “front doors” to a company for any third-party inventor, crucial to the commercialization of inventions generally. Unfortunately, patent submission policies have thus far remained unstudied in legal academic scholarship.

Patent Pacifism, Clark D. Asay

Faculty Scholarship

Over the last decade, much of the patent law literature has focused on the problem of “patent trolls,” or patent owners who don’t make products, but sue others that do. The basic complaint against these types of entities is that they impose a tax on innovation without providing offsetting societal benefits. Furthermore, their patent assertions have been on the rise, with a significant percentage of patent suits now attributable to them. In short, the troll phenomenon suggests a problem of excessive patent assertions.

But despite the importance of the troll phenomenon, the fact remains that most patents are never asserted, …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Enhanced Damages For Patent Infringement: A Normative Approach, Keith N. Hylton

Faculty Scholarship

This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society's welfare. Patent damages should therefore balance society's interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size …

Copyright's Framing Problem, Margot Kaminski, Guy A. Rub

Publications

Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: Books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, an approach we call “zooming out,” or to frame it as a combination of many small parts, an approach we call “zooming in.” This framing move occurs across many copyright doctrines: fair use, infringement analysis, statutory damages calculations, separability determination, and more.

This Article focuses on …

A Taste Of The Current Protection Offered By Intellectual Property Law To Molecular Gastronomy, Mary Grace Hyland

Cybaris®

No abstract provided.

Stop Letting Wine Crash The Wedding: Craft Beer Consumers Are Sophisticated Buyers, Justin P. Weinberg, O. Joseph Balthazor Jr.

Cybaris®

No abstract provided.

The India Patent System: A Decade In Review, Vindhya S. Mani, Divyanshu Srivastava, Mukundan Chakrapani, Jay Erstling

Cybaris®

No abstract provided.

When Individual Rights Should Tackle Unfair Commercialization: How The Transformative Use Test Should Be Tailored To Meet Evolving Technological Needs In Right Of Publicity Cases, Caitlin Kowalke

Cybaris®

No abstract provided.

Transcript From 2017 Mitchell Hamline Trade Secret Conference, Cybaris Scholar Symposium, Cybaris Staff, Sharon Sandeen

Cybaris®

Transcript of a panel discussion on trade secret law held April 21, 2017 at Mitchell Hamline School of Law in St. Paul, Minnesota.

Panelists: Rochelle Dreyfuss, Christoph Rademacher, Susy Frankel, and Nari Lee.
Moderator: Sharon Sandeen.

Misappropriation On A Global Scale: Extraterritoriality And Applicable Law In Transborder Trade Secrecy Cases, Rochelle Dreyfuss, Linda Silberman

Cybaris®

No abstract provided.

Charting The Contours Of A Copyright Regime Optimized For Engineered Genetic Code, Christopher M. Holman

Oklahoma Law Review

No abstract provided.

Copyright To The Rescue: Should Copyright Protect Privacy?, Deidre Keller

Journal Publications

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment.

Part II of this …

Misappropriation Of Genetic Resources In Africa: A Study Of: Pentadiplandra Brazzeana,Impatiens Usambarensis, And Combretum Micranthum, Julie Micalizzi

Journal of Law, Technology, & the Internet

"This paper...address[es] three potential cases of misappropriation concerning traditional knowledge and genetic resources of traditional groups in Africa and will explore how the Western patent system enabled,prevented, and corrected misappropriation in the context of these case studies. In all three studies, the patent system failed in misapplying the requirements of patentability and in granting patents for information that is per se unpatentable. However, the unpatentability of these specific instances of traditional knowledge also precludes the indigenous populations from claiming property rights over the information. Without an exclusionary property right, third parties are still able to commercialize the information. While such …

In Defense Of Secondary Pharmaceutical Patents: Response To The Un's Guidelines For Pharmaceutical Patent Examination, Christopher M. Holman

Faculty Works

In 2015 the United Nations Development Programme issued a document entitled Guidelines for Pharmaceutical Patent Examination: Examining Pharmaceutical Patents from a Public Health Perspective (the “Guidelines”). The heart of the Guidelines is a category-by-category examination of eight types of “secondary” pharmaceutical patent claims: Markush claims; selection patents; polymorphs; enantiomers; salts; ethers and esters; compositions; doses; combinations; prodrugs; metabolites; and new medical uses. The Guidelines advise patent offices to apply heightened patentability requirements to these claims in a manner that would effectively deny patent protection to important pharmaceutical innovations currently afforded patent protection. In particular, the Guidelines postulate that many forms …

Charting The Contours Of Copyright Regime Optimized For Engineered Genetic Code, Christopher M. Holman

Faculty Works

There is a growing disconnect between the traditional patent-centric approach to protecting biotechnological innovation and the emerging intellectual property imperatives of “synthetic biology,” a promising new manifestation of biotechnology that enables the design and construction of artificial biological pathways, organisms or devices, as well as the redesign of existing natural biological systems. As explained in previous articles, one way to deal with this disconnect would be to expand the scope of copyrightable subject matter to encompass engineered genetic sequences, much in the way that copyright was expanded in the 1970s and 1980s to include computer programs. The present article expands …

Eli Lilly V. Teva: Generic Companies Infringe Under Akamai Iv In Case Of Divided Infringement, Christopher M. Holman

Faculty Works

The U.S. Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies decision (Akamai III), in conjunction with the Federal Circuit’s stance on divided infringement claims, effectively undermined the value of method claims, particularly in the realm of pharmaceuticals, diagnostics, and other biotechnology related innovation, by limiting the ability of patentees to establish liability in cases where steps of the claimed method are performed by multiple parties. On remand, the en banc Federal Circuit in Akamai Technologies v. Limelight Networks (Akamai IV) sought to address the problem by expanding the definition of direct infringement under 271(a) to encompass more scenarios …

Case Ip Law, Case Western Reserve University School Of Law, The Spangenberg Center For Law, Technology & The Arts

Case IP Law News

Vol. 4, #1

• From Concept to Company: Law School’s IP Venture Clinic Helps Launch Nationally Recognized Student Startup
• Fusion Program Trains Students to Bring Advanced Medical Imaging Technologies to the Marketplace
• CWRU Alum Appointed Chief Judge of U.S. Court of Claims
• IP Venture Clinic Submits First Amicus Brief in Federal Circuit Case
• 2017-2018 Lectures and Conferences
• Law School’s Newest Lab Defends First Amendment Rights in the Midwest
• Great Lakes Sports & Entertainment Law Academy Now Available Online
• Patent Pro Bono Program Secures First Patent for Local Inventor
• The Growing Industry: Professor Craig Nard Leads National Conversation on the Marijuana Industry …

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …