Intellectual Property Law Commons^™

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Journal Articles

This Article, delivered as the 2017 Oldham Lecture at the University of Akron School of Law, focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement — use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but …

Masthead, Volume 8 Issue 1

Journal of Law, Technology, & the Internet

No abstract provided.

Confining Cultural Expression: How The Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion, April M. Hathcock

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Solar Climate Engineering And Intellectual Property: Toward A Research Commons, Jorge L. Contreras, Jesse L. Reynolds, Joshua D. Sarnoff

Utah Law Faculty Scholarship

Climate change is one of the greatest challenges confronting society today. Solar climate engineering (SCE) has the potential to reduce climate risks substantially. This controversial technology would make the earth more reflective in order to counteract global warming. Though the science of SCE is still in its infancy, SCE research and development should proceed in a coordinated, responsible, and expeditious fashion. However, the role of patents, research data, and trade secrets in SCE research remains unclear and contested. To this end, this article identifies concerns that may arise through the acquisition of intellectual property rights in SCE and proposes the …

Bridges Ii: The Law-Stem Alliance & Next Generation Innovation, Jacob S. Sherkow

Articles & Chapters

No abstract provided.

The Rcep And Intellectual Property Normsetting In The Asia-Pacific, Peter K. Yu

Faculty Scholarship

Commissioned for the CEIPI-ICTSD Series on Global Perspectives and Challenges for the Intellectual Property System, this article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms it seeks to develop. It begins by briefly discussing the partnership’s historical origins and ongoing negotiations. It then examines the latest leaked draft of the RCEP intellectual property chapter, highlighting the key provisions concerning copyright and related rights, trademarks, patents, trade secrets and undisclosed information, and intellectual property enforcement. This article concludes by exploring three scenarios concerning the future of this chapter--namely, the lack of an intellectual property …

Multivoiced Authors, Lior Zemer

Cardozo Arts & Entertainment Law Journal

From many sources we have inherited a rich panoply of images about the "good author." The prevalent image of the good author as a unique individual who deserves a right in the works he creates and recognition for his contribution to the common stock of knowledge, occupies contemporary legal scholarship on copyright. Scholars argue that the law privileges owners with entitlements incompatible with the social nature of the creative act, and in this way disturbs the expectation that copyright law will "promote the Progress of Science and the useful Arts." In their arguments they claim that authorship is less an …

The Rcep And Trans-Pacific Intellectual Property Norms, Peter K. Yu, Peter K. Yu

Vanderbilt Journal of Transnational Law

This Article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms that it seeks to develop. The first half of the Article focuses on the RCEP Agreement as a mega-regional agreement. It begins by briefly discussing the historical origins of the RCEP. It then explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. Specifically, the Article evaluates the scenarios in which the agreement will function as a rival pact, a building block, and an alternative path. The second half of this Article …

Regime Shift Of Ip Lawmaking And Enforcement From Wto To The International Investment Regime, James Gathii, Cynthia Ho

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Dynamic Effect Of Information Privacy Law, Ignacio Cofone

Minnesota Journal of Law, Science & Technology

Discussions of information privacy typically rely on the idea that there is a trade off between privacy and availability of information. But privacy, under some circumstances, can lead to creation of more information. In this article, I identify such circumstances by exploring the ex ante incentives created by entitlements to personal data and evaluating the long-term effects of privacy. In so doing, I introduce an economic justification of information privacy law. Under the standard law & economics account, as long as property rights are defined and transaction costs are low, initial right allocations should be irrelevant for social welfare. But …

Artistic Control After Death, Eva Subotnik

Faculty Publications

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …

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 …

Abilify, Brintellix, Champix: The Abcs Of Fda Proprietary Name Disputes, M. Dinora Smith

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Combating Counterfeits: Using U.S. Law To Analyze The Potential Application Of China's Amended Trademark Law To Online Marketplaces, Kerrijane John

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Freedom Of Artistic Expression In The Jurisprudence Of The United States Supreme Court And Federal Constitutional Court Of Germany: A Comparative Analysis, Raman Maroz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introductions, Melanie B. Leslie

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Amending The Consent Decrees To Bring Musical Composition Licensing Into The Free Market, Danielle Ely

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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

Publications

No abstract provided.

Much Ado About The Tpp's Effect On Pharmaceuticals, Emily M. Morris

Faculty Publications

The Trans-Pacific Partnership Agreement’s many provisions that were beneficial to the pharmaceutical industry have caused a good deal of controversy. Specifically, critics allege that the TPP’s provisions requiring that member states expand patentable subject matter, adjust pharmaceutical patent terms, and link regulatory marketing approval to a drug's patent status would have raised drug prices and hindered access to medicines, particularly in developing countries. Closer examination of these provisions as well as the various ways in which member states can modify or ameliorate the effects of these provisions suggests that their potential effect on drug prices and access to health care …

The Sum Is More Public Domain Than Its Parts: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg

Faculty Scholarship

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the "separability" predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented "[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function." Star Athletica involved the "surface decorations" of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the …

Top Tens In 2016: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court issued several rulings that affect incentives in patent law. The Court relaxed the standard for the award of treble damages, narrowed the damages awards for infringement of design patents, and upheld key parts of the new procedures for challenging the validity of patents before the United States Patent and Trademark Office. After numerous decisions holding claimed inventions to be outside patentable subject matter in the wake of the Supreme Court’s 2014 Alice decision, the Federal Circuit rejected some challenges on those grounds, evincing a split among the circuit’s judges on the bounds of patentable subject matter. Several …

Abuse Of The Hatch-Waxman Act: Mylan's Ability To Monopolize Reflects Weaknesses, Kieran Meagher

Brooklyn Journal of Corporate, Financial & Commercial Law

The Drug Price Competition and Patent Term Restoration Act of 1984, better known as the Hatch-Waxman Act, is intended to lower the average price paid by consumers for prescription drugs. The Hatch-Waxman Act attempts to do so by simplifying the application process for generic drug manufacturers, allowing generic drug applications to circumvent the lengthy FDA testing and approval process that brand-name manufacturers must undergo. Though the Hatch-Waxman Act has successfully created a clear path to the market for generic drugs, it contains loopholes that allow brand name and generic companies to engage in practices aimed at maximizing monopoly profits, effectively …

Reinvention, Sean B. Seymore

Vanderbilt Law School Faculty Publications

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 …

Private Law And The Future Of Patents, Oskar Liivak

Cornell Law Faculty Publications

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …

Democratizing Academic Journals: Technology, Services, And Open Access, Scholastica, Danielle Padula, Björn Brembs, Stevan Harnad, Ulrich Herb, Roxanne Missingham, Dan Morgan, John Ortbal

Copyright, Fair Use, Scholarly Communication, etc.

This white paper delves into:

• The past and present state of journal publishing

• Current alternatives to the corporate publisher model

• Steps to realize sustainable, open access-friendly journal models of the future

This paper argues democratization of journal publishing is the key to lowering journal production costs and facilitating OA. Members of the academic community, either at established not-for-profit organizations or through informal groups of editors and advocates, must break up the corporate publisher conglomerate by taking control of journals and developing funding, access, and distribution models that work for their disciplines. This paper explores how widespread adoption …

Theft! A History Of Music: A Tale Of Law And Music That Leads Through The Gates Of Time! [Tales From The Public Domain], Keith Aoki, James Boyle, Jennifer Jenkins

Copyright, Fair Use, Scholarly Communication, etc.

Back cover text:

This comic lays out 2000 years of musical history. A neglected part of musical history. Again and again there have been attempts to police music; to restrict borrowing and cultural cross-fertilization. But music builds on itself. To those who think that mash-ups and sampling started with YouTube or the DJ's turntables, it might be shocking to find that musicians have been borrowing-extensively borrowing-from each other since music began. Then why try to stop that process The reasons varied. Philosophy, religion, politics, race--again and again, race--and law. And because music affects us so deeply, those struggles were passionate …

Royalty Securitization, Kristelia García

Publications

No abstract provided.

Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski

Publications

Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

Optimal Remedies For Patent Infringement, Keith N. Hylton, Mengxi Zhang

Faculty Scholarship

This paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment.