Intellectual Property Law Commons^™

Legal Jurisdiction And Virtual Social Life, Paul Schiff Berman

Catholic University Journal of Law and Technology

Social lives are increasingly unmoored from physical location. 21^st century developments in social media, virtual worlds, augmented reality, electronic financial transactions, drones, robotics, and artificial intelligence allow human beings to interact in more and more robust ways at a physical remove from their location. Meanwhile, the ubiquity of multinational corporations, global supply chains, and cloud-based data all mean that our lives are more likely to be affected by activity that is spatially distant. Virtual effects often replace direct territorial effects.

Three important consequences flow from this ubiquitous technology-enabled, data-driven virtual global societal activity. First, the territorial location of data …

Worldwide Frand Licensing Standard, Garry A. Gabison

American University Business Law Review

No abstract provided.

Machine Learning At The Patent Office: Lessons For Patents And Administrative Law, Arti K. Rai

Faculty Scholarship

The empirical data indicate that a relatively small increment of additional U.S. Patent and Trademark Office (“Patent Office” or “USPTO”) investment in prior art search at the initial examination stage could be a cost-effective mechanism for improving accuracy in the patent system. This contribution argues that machine learning provides a promising arena for such investment. Notably, the use of machine learning in patent examination does not raise the same potent concerns about individual rights and discrimination that it raises in other areas of administrative and judicial process. To be sure, even an apparently easy case like prior art search at …

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to …

Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

Agency heads, who have the primary responsibility for setting an agency's policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official's determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials' decisions are influenced by higher-level agency reconsideration has mostly eluded analysis.

In this Essay, we begin to fill this gap by examining the extent to which …

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Design Patent Bar: An Occupational Licensing Failure, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

Although any attorney can represent clients with complex property, tax, or administrative issues, only a certain class of attorneys can assist with obtaining and challenging patents before the United States Patent & Trademark Office (PTO). Only those who are members of the PTO 's patent bar can prosecute patents, and eligibility for the patent bar is only available to people with substantial scientific or engineering credentials. However much sense the eligibility rules make for utility patents-those based on novel scientific or technical inventions-they are completely irrational when applied to design patents-those based on ornamental or aesthetic industrial design. Nevertheless, the …

Fixing The Design Patent Bar: New Opportunities For Federal Lawyers, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

No abstract provided.

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

Copyrights In Higher Education: Motivating A Research Agenda, Jacob H. Rooksby

Law Faculty Publications

The Bayh–Dole Act of 1980 enabled American universities to engage in technology transfer. Thirty years of research has investigated the legislation’s effectiveness and derivative university practices, such as the establishment of technology transfer offices. Unfortunately, the technology transfer literature has focused primarily on patenting as the primary transfer vehicle for protecting intellectual property in universities, overlooking other forms of IP ownership, such as copyrights. Legal scholarship shows, however, that universities are increasingly using copyrights to protect their intellectual property and that the number of university-held copyrights exceeds patents. This paper examines the use of copyrights to protect and transfer university …

Revisiting Controlled Digital Lending Post-Redigi, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Now that the Second Circuit has ruled on the ReDigi appeal, some libraries and users may be curious to see how the decision factors into controlled digital lending (CDL) efforts. To understand the interest and the implications, we first need to establish the basic contours of copyright, fair use, CDL, and ReDigi.

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

Scholarly Works

An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

Scholarly Works

This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …

Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick

Scholarly Works

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights — which …

Patent Inequality, Greg Day, W. Michael Schuster

Scholarly Works

Using an original dataset of over 1,000,000 patents and empirical methods, we find that the patent system perpetuates inequalities between powerful and upstart firms. When faced with growing numbers of patents in a field, upstart inventors reduce research and development expenditures, while those already holding many patents increase their innovation efforts. This phenomenon affords entrenched firms disproportionate opportunities to innovate as well as utilize the resulting patents to create barriers to entry (e.g., licensing costs or potential litigation).

A hallmark of this type of behavior is securing large patent holdings to create competitive advantages associated with the size of the …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

Scholarly Works

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley

Scholarly Works

This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …

Rising Confusion About "Arising Under" Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

Copyright’S Memory Hole, Eric Goldman, Jessica Silbey

Faculty Scholarship

There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts.
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