Intellectual Property Law Commons^™

Digitizing Scent And Flavor: A Copyright Perspective, Amara Lopez

Michigan Technology Law Review

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor.

Recent developments in technology have led to the digitization …

Pharmaceutical "Pay-For-Delay" Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

Articles

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or "pay-for-delay." Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the …

The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley

Loyola of Los Angeles Law Review

Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …

Indonesian Perspective On The Investor–State Dispute Settlement Mechanism For Foreign Investment Dispute Settlement In The Field Of Intellectual Property Rights, Jessica Leonard, Prita Amalia, An An Chandrawulan

Indonesia Law Review

Investment includes tangible and intangible assets. Intangible assets are often connected with intellectual property which leads to intangible results. The lack of “visibility” in intangible assets makes them difficult to measure. Current international regulations have not also explicitly provided room for enforcement regarding intellectual property rights in terms of foreign investment. Therefore, an emergence of cases is observed in investment disputes within the field of intellectual property rights through the Investor–State Dispute Settlement (ISDS) mechanism. In this research, we discuss cases of foreign investment disputes in such a field. From these cases, we find the factors that determine the occurrence …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

Washington and Lee Law Review

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

Teaching Copyright Law Through Participatory Involvement In An Unconference Setting, Amanda Mccormick, Stephanie A. Adams, Hope A. Dunbar, Sarah Mclean-Plunkett

Law Librarian Journal Articles

An “unconference” is an attempt by librarians and other professionals to work outside of the traditional conference model. Presenters are encouraged to break out of traditional modes of presentation and try new methods of engaging with the participants. We submitted an idea for a session focused on demystifying domestic and international copyright law and discussing how the law affects libraries and archives. Modern librarianship demands at least a basic understanding of copyright and intellectual property issues, and librarians have reported that they lack training and knowledge in this area. We determined that we did not want to present a formal …

The Data Market: A Proposal To Control Data About You, David Shaw, Daniel W. Engels

SMU Data Science Review

The current legal and economic infrastructure facilitating data collection practices and data analysis has led to extreme over-collection of data and the overall loss of personal privacy. Data over-collection has led to a secondary market for consumer data that is invisible to the consumer and results in a person's data being distributed far beyond their knowledge or control. In this paper, we propose a Data Market framework and design for personal data management and privacy protection in which the individual controls and profits from the dissemination of their data. Our proposed Data Market uses a market-based approach utilizing blockchain distributed …

Guest Post Out Of The Blue The Federal Circuit Devises A New Rule For Color Mark, Christine Farley

Editorial Contributions

The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that “a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, therefore, can be inherently distinctive.” URL: https://patentlyo.com/patent/2020/04/federal-circuit-devises.html

A Tale Of Two Sales: How A Secret Sale Remains A Bar To Patentability Under The Aia, Kris Schroder

University of Cincinnati Law Review

No abstract provided.

How The Fusion Of Technology And The Law Will Serve As A Catalyst For Legal Evolution, Andrabi, Nayef

Santa Clara High Technology Law Journal

HOW THE FUSION OF TECHNOLOGY AND THE LAW WILL SERVE AS A CATALYST FOR LEGAL EVOLUTION

Public Performance? How Let's Plays And Livestreams May Be Escaping The Reach Of Traditional Copyright Law, Brianna K. Loder

Washington Journal of Law, Technology & Arts

Let’s Plays and livestreams are popular online videos of videogames being played. The Copyright Act protects videogames as audiovisual works, and therefore provides videogames with the exclusive right of public performance. The Supreme Court issued a ruling in ABC, Inc. v. Aereo, Inc. which clarified that performances in an online setting can be public even if the individuals receiving the content are doing so privately. However, the Court’s holding did not provide guidance on who is a performer, and therefore is liable for the infringing conduct, beyond the specific context by which Aereo transmitted content to its subscribers. Let’s Plays …

Ithaka S+R Us Library Survey 2019, Jennifer K. Frederick, Christine Wolff-Eisenberg, Ithaka S+R

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

The Ithaka S+R Library Survey 2019 examines strategy and leadership issues from the perspective of academic library deans and directors. This project aims to provide academic librarians and higher education leaders with information about chief librarians’ visions and the opportunities and challenges they face in leading their organizations. In fall 2019, we invited library deans and directors at not-for-profit four-year academic institutions across the United States to complete the survey, and we received 662 responses for a response rate of 46 percent. In this survey cycle, we added new coverage of three key topics: equity, diversity, and inclusion …

Risks Of Blockchain For Data Protection: A European Approach, Jiménez-Gómez, Briseida Sofia

Santa Clara High Technology Law Journal

RISKS OF BLOCKCHAIN FOR DATA PROTECTION: A EUROPEAN APPROACH

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

Michigan Law Review Online

In late 2019 and early 2020, a new strain of coronavirus, a family of pathogens causing serious respiratory illness, began infecting populations across the globe. A quick uptick in COVID-19, the disease caused by the novel pathogen, prompted the World Health Organization to declare the outbreak a Public Health Emergency of International Concern on January 30, 2020. By mid-February 2020, with 26 countries reporting cases of COVID-19 infection, the global case count had surpassed 50,000, and had resulted in over 1,500 deaths. The World Health Organization elevated the status of the outbreak to a pandemic in mid-March. As of early …

Research And Repair: Expanding Exceptions To Patent Infringement In Response To A Pandemic, Jorge L. Contreras

Utah Law Faculty Scholarship

The doctrinal areas on which this essay focuses are two longstanding but narrow exemptions from patent infringement: one that permits scientific research, and one that permits the owner of a patented device to repair it. Though distinct at first glance, both of these doctrines act to permit activity that would otherwise be considered patent infringement. They are exceptions to the exclusivity that the law grants to patent holders – particularly the right to “make” a patented article and, to a lesser degree, to “use” it, and for this reason they are particularly salient when patents may impact critical lifesaving technologies. …

From Adidas To Zenga: A Historical And Comparative Analysis Of International Intellectual Property Law In Fashion, Loren E. Mulraine

Law Faculty Scholarship

This article provides a historical and comparative analysis of international intellectual property law as applied to the fashion industry. Tracing the development of trademark law from its common law origins in unfair competition to its modern statutory embodiment in the Lanham Act, the article examines the central role of branding in fashion’s economic and cultural influence. It further analyzes the evolution of copyright protection and its uneasy fit within a design-driven industry historically characterized as manufacturing rather than creative production. The article situates U.S. intellectual property doctrine within the broader framework of international treaties and institutions, including the Paris Convention, …

The International Intellectual Property Commercialization Council’S 3rd Annual U.S. Conference: The State Of Innovation In The Union, Neel U. Sukhatme, Paul R. Zielinski, G. Nagesh Rao, Pj Bellomo, Matthew Byers, Meghan Gaffney Buck, Everardo Ruiz

Georgetown Law Faculty Publications and Other Works

The International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of …

The Replicability Crisis In Patent Law, Janet Freilich

Faculty Scholarship

There is a “replicability crisis” in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments—up to 90%—do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether …

A Comparative Study Of Trademarks: Usmca (U.S.-Mexico-Canada Agreement) And Nafta (North American Free Trade Agreement), Roberto Rosas

Faculty Articles

The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across …

Is Biopharma Ready For The Standards Wars?, Jorge L. Contreras

Utah Law Faculty Scholarship

This symposium contribution sheds new light on Momenta v. Amphastar, a recent federal case in which issues relating to standardization and patent disclosure that have previously been observed in the semiconductor, computing and telecommunications sectors found their way into a dispute between two biosimilar manufacturers. One such manufacturer, Momenta, participated in the development of a standard for testing the purity of generic enoxaparin under the auspices of the United States Pharmacopeial Convention, but failed to disclose that it had applied for a patent on the testing method. When Momenta later sued Amphastar for infringement based on its use of that …

Fostering Bibliodiversity In Scholarly Communications: A Call For Action!, Kathleen Shearer, Leslie Chan, Iryna Kuchma, Pierre Mounier

Copyright, Fair Use, Scholarly Communication, etc.

Diversity is an important characteristic of any healthy ecosystem, including scholarly communications. Diversity in services and platforms, funding mechanisms, and evaluation measures will allow the scholarly communication system to accommodate the different workflows, languages, publication outputs, and research topics that support the needs and epistemic pluralism of different research communities. In addition, diversity reduces the risk of vendor lock-in, which inevitably leads to monopoly, monoculture, and high prices. Bibliodiversity has been in steady decline for decades.1 Far from promoting diversity, the dominant “ecosystem” of scholarly publishing today increasingly resembles what Vandana Shiva (1993) has called the “monocultures of the mind”2, …

Pseudo-Gambling And Whaling: How Loot Boxes Pray On Vulnerable Populations And How To Curtail Future Predatory Behavior, Alexander Mann

Washington Journal of Law, Technology & Arts

The video game industry has blossomed from a niche hobby into a mainstream cultural industry, outpacing global box office sales in annual revenue. Yet the price of a video game has barely increased since the industry’s inception, and the current standard price point of sixty dollars has survived for over a decade. Competitive market forces drive companies to invest ever more time and money into creating increasingly complex software in order to remain on the cutting edge of graphics and design, while simultaneously increasing revenue. Thus, video game developers and publishers have developed a multitude of alternative money- making services …

Visual Appropriation Art, Transformativeness, And Fungibility, Jasmine C. Abdel-Khalik

Faculty Works

As an intentionally flexible doctrine, fair use in copyright has a long history of ambiguity and criticism. While courts have developed various standards and considerations to give fair use some shape, key decisions have generally done so in the context of textual material. Likewise, the examples in Judge Leval’s seminal work on fair use involve textual material. His argument to assess the first fair use factor based on transformativeness has won the day. But in contrast to the textual examples, interpreting the meaning and transformation of visual works is rife with danger.

Recent appropriation art cases exemplify this danger and …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

Rejection Hurts: Trademark Licenses And The Bankruptcy Code, Amanda E. James

Vanderbilt Law Review

Section 365 of the Bankruptcy Code empowers debtors to reject burdensome executory contracts. From 1988 until May 2019, the effect of such a rejection on trademark licenses was unclear. The Supreme Court’s recent decision in Mission Product Holdings, Inc. v. Tempnology, LLC settled the matter definitively: all rejections under § 365(g) operate exactly as a breach would outside the bankruptcy context. As such, if the trademark license would allow the licensee to continue using the mark after a breach, the licensee may continue to use the mark after a rejection. While this decision comports with the language of the Code …

Judging Equivalents, Lim, Daryl

Santa Clara High Technology Law Journal

JUDGING EQUIVALENTS

Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored …

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Scholarly Articles in Law Reviews & Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Patents As Property: Oil States And Its Implications On The Takings Clause, Jordan T. Owens

Cardozo Law Review

No abstract provided.

Sample-Based Hip-Hop Music And Fair Use Laws In The Age Of Streaming Services, Michael Vanbuhler

Senior Theses

This thesis takes an in depth look at the history and processes behind creating sample-based music. Sampling was popularized during the beginnings of hip-hop music and now a wide variety of genres use samples or techniques created by sample-based music. Early hip-hop beats took samples of drum breaks or a portion of a track from another artist or band. As hip-hop grew in the late 80s and early 90s, the use of samples became a question of intellectual property rights and if it was acceptable to sample someone’s copyrighted work. Lawsuits in the early 90’s helped to create new caselaw …