Intellectual Property Law Commons^™

The Undiscovered Country: Fixing Copyright By Re-Thinking Pretrial Litigation, John C. Heinbockel

Intellectual Property Brief

No abstract provided.

Look What They've Done To My Song, Ma: Jonathan Coulton, Moral Rights, And A Proposal For The Reform Of 17 U.S.C. § 115(A) (2), Joe Newman

Intellectual Property Brief

No abstract provided.

Developing A Research Data Policy Framework For All Journals And Publishers, Iain Hrynaszkiewicz, Natasha Simons, Azhar Hussain, Rebecca Grant, Simon Goudie

Copyright, Fair Use, Scholarly Communication, etc.

More journals and publishers – and funding agencies and institutions – are introducing research data policies. But as the prevalence of policies increases, there is potential to confuse researchers and support staff with numerous or conflicting policy requirements. We define and describe 14 features of journal research data policies and arrange these into a set of six standard policy types or tiers, which can be adopted by journals and publishers to promote data sharing in a way that encourages good practice and is appropriate for their audience’s perceived needs. Policy features include coverage of topics such as data citation, data …

University Inventions Reconsidered: Debunking The Myth Of University Ownership, Patricia E. Campbell

William & Mary Business Law Review

Most universities today assert ownership rights over all patentable inventions (and many other types of intellectual property) created by members of the university community, including faculty, staff, students, visitors, and others. Universities then attempt to license that intellectual property (IP) to third parties, in order to generate revenue for the university and to give the public the benefit of innovations developed by the institution, often with the use of federal funds. This Article provides an evaluation of the technology transfer policies and practices of U.S. universities. Part I surveys the IP policies of a representative group of universities, showing that …

Scraping Bepress: Downloading Dissertations For Preservation, Stephen Zweibel

Copyright, Fair Use, Scholarly Communication, etc.

This article will describe our process developing a script to automate downloading of documents and secondary materials from our library’s BePress repository. Our objective was to collect the full archive of dissertations and associated files from our repository into a local disk for potential future applications and to build out a preservation system.

Unlike at some institutions, our students submit directly into BePress, so we did not have a separate repository of the files; and the backup of BePress content that we had access to was not in an ideal format (for example, it included “withdrawn” items and did not …

Will Fast Fashion Go Out Of Style Soon? How Couture Designers, Celebrities, And Luxury Brands Fighting Back May Change The Future Legal Landscape For Mass Affordable Retailers, Vulaj, Elizabeth

Santa Clara High Technology Law Journal

WILL FAST FASHION GO OUT OF STYLE SOON? HOW COUTURE DESIGNERS, CELEBRITIES, AND LUXURY BRANDS FIGHTING BACK MAY CHANGE THE FUTURE LEGAL LANDSCAPE FOR MASS AFFORDABLE RETAILERS

A Perspective On Technology Education For Law Students, Volini, Anthony

Santa Clara High Technology Law Journal

A PERSPECTIVE ON TECHNOLOGY EDUCATION FOR LAW STUDENTS

Cyberdamages, Black, Stephen T.

Santa Clara High Technology Law Journal

CYBERDAMAGES

Old School Goes Online: Exploring Fiduciary Obligations Of Loyalty And Care In The Digital Platforms Era, Whitt, Richard S.

Santa Clara High Technology Law Journal

OLD SCHOOL GOES ONLINE: EXPLORING FIDUCIARY OBLIGATIONS OF LOYALTY AND CARE IN THE DIGITAL PLATFORMS ERA

The Implementation Of Artificial Intelligence In Hard And Soft Counterterrorism Efforts On Social Media, Schnader, Jonathan

Santa Clara High Technology Law Journal

THE IMPLEMENTATION OF ARTIFICIAL INTELLIGENCE IN HARD AND SOFT COUNTERTERRORISM EFFORTS ON SOCIAL MEDIA

Roadmap For Open Science (Canada), Mona Nemer

Copyright, Fair Use, Scholarly Communication, etc.

The objective of the Roadmap for Open Science is to provide overarching principles and recommendations to guide Open Science* activities in Canada. The recommendations are intended for science and research funded by federal government departments and agencies.

The Roadmap for Open Science was developed in the context of the Directive on Open Government, the Model Policy on Scientific Integrity and the Data Strategy Roadmap for the Federal Public Service. It builds on the Tri-Agency Open Access Policy on Publications and the Statement of Principles on Digital Data Management. A federal approach to supporting Indigenous data strategies is outlined in the …

Osi 2019 Annual Report, Glenn Hampson

Copyright, Fair Use, Scholarly Communication, etc.

OSI’s 2019 work focused on building a bridge to 2020—continuing our pivot from being an organization focused on understanding facts and perspectives, to one poised to pursue a significant, global reform agenda. This is a challenge for any group—doubly so for a group like OSI at the pioneering edge of a nebulous field, while also trying to maintain a republic format where all participants are co-equal leaders. OSI’s strategy in 2019 focused primarily on these three agenda items:

1. Find sustainable financing.

2. Help coordinate the construction of a new global roadmap for open.

3. Prepare for and start work …

Patent Eligibility Standard For Network Architecture Patents Under The Federal Circuit’S Jurisprudence, Chen, Ping-Hsun

Santa Clara High Technology Law Journal

PATENT ELIGIBILITY STANDARD FOR NETWORK ARCHITECTURE PATENTS UNDER THE FEDERAL CIRCUIT’S JURISPRUDENCE

Crash Goes Icann's Multistakeholder Model, Kathryn Kleiman

Scholarly Articles in Law Reviews & Journals

In 1995, the Internet was becoming a global phenomenon and users needed "domain names"--the street signs of Internet addresses--for an array of commercial and noncommercial speech. A small community of "multistakeholders"--business, civil society, governments, technologists, intellectual property and non-government organization representations--began to write rules for Internet addresses largely on behalf of a global population that had yet to be connected to the Internet. I had the privilege of being part of that group. Since then, Internet use has skyrocketed from 70 million users (1.7% of the world population) in 1995 to over 4.5 billion users (58.8% of the world population) …

Nonexcludable Surgical Method Patents, Jonas Anderson

William & Mary Law Review

A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?

The traditional answer …

Can International Patent Law Help Mitigate Cancer Inequity In Lmics?, Srividhya Ragavan, Amaka Vanni

Faculty Scholarship

Although low- and middle-income countries (LMICs) bear 75% of the cancer burden globally, their available resources to treat cancer constitute less than 5% of global health resources. This inequity makes it imperative to take appropriate measures to treat and prevent cancer in LMICs, which should include consideration of trade and patent policies. This article highlights some impediments to effective use of existing policies to promote access to treatment and prevention measures in LMICs and offers recommendations about next steps.

Placebo Marks, Jake Linford

Pepperdine Law Review

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer. A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

Tripping Over The Eu Trade Secret Directive: "Reasonable Steps" To Get Back On Track, Bianca Fox

Chicago-Kent Journal of Intellectual Property

Trade secrets are a crucial tool for global firms today, including those that do business within the European Union (“EU”). The 2016 European Union Trade Secret Directive (“Directive”) attempted to establish uniform trade secret protection across all twenty-eight EU Member States but created problems in its wake. In particular, the Directive put no restrictions on whether Member States could specify certain “reasonable steps” that businesses must take in order to be afforded trade secret protection. This Article argues that Member States should be required to follow the trade secret definition laid out in Article 2 of the Directive and not …

German Law On Patent Injunctions: Legal Framework And Recent Developments, Peter Picht Phd

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Into The Woods: A Biologic Patent Thicket Analysis, Jeffrey Wu, Claire Wan-Chiung Cheng

Chicago-Kent Journal of Intellectual Property

Some drug companies, brand biologic companies, in particular, have been accused of covering only a single drug with more than eighty patents. These drug patents accumulate to what critics claim as one of the major culprits of high drug prices— “patent thickets.” However, current literature mostly focuses on the substantial patent counts and less on the characteristics and the causes of these patent thickets; but to effectively understand and tackle this issue, more thorough discussions are necessary. This article aims to provide further insight into this issue by analyzing and comparing the U.S. patents that cover top-selling biologics and small-molecule …

Perfecting U.S. Patentable Subject Matter - Merging The European Approach And The American Principles, Ilija Ilijovski

Chicago-Kent Journal of Intellectual Property

This article illuminates the recent developments in the field of the subject matter eligibility of the inventions and offers a resolution to the crucial issues in the field. The solution for resolving of the crucial issues combines the current U.S. approach of affirmative defining of the scope of the subject matter of the patents and the approach of the European Patent Convention, of both affirmative and negative defining of the patentable subject matter. In particular, the article provides a draft legislation as a more sustainable and precise solution that emerged from the comparison between the experience of the participants in …

Discretionary Denials Of Ipr Institution, Jasper Tran, Matthew Chung, David Maiorana, Matthew Johnson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Litigating Invalidity After Ipr Resolution, Libbie Dimarco, Nathan Speed

Chicago-Kent Journal of Intellectual Property

It is becoming increasingly apparent that inter partes review (“IPR”) petitioner estoppel after the Patent Trial and Appeal Board (“PTAB”) issues a final written decision can have broad consequences on a petitioner’s invalidity defenses in civil actions. This article will examine the practical impact of IPR estoppel and discuss strategic considerations for IPR parties involved in parallel district court or International Trade Commission (“ITC”) actions. This article will address four main questions : (1) when and how a petitioner can use paper prior art in a § 102 or 103 defense after an unsuccessful IPR; (2) how IPR estoppel may …

The Disappointments Of Networks, Henry Fraser Phd

Chicago-Kent Journal of Intellectual Property

The past 25 years have seen a ‘turn to culture’ in copyright scholarship. This cultural turn has produced an expansive account of copyright’s disadvantages with respect to qualitative cultural and political goals such as: promoting democracy, individual self-authorship, expressive diversity, and more inclusive power distribution in shaping culture and discourse. The prevailing view among proponents of the cultural turn is that copyright stands in the way of the democratisation of creative and discursive spheres online. This article challenges that view. I contend that online, ‘free’ content economies—characterised by peer production, decentralised selection, and peer to peer content sharing—have not lived …

Safeguarding Fair Use Through First Amendment's Asymmetric Constitutional Fact Review, Amanda Reid

William & Mary Bill of Rights Journal

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. De Vito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdictthat had found in favor of a defendant's fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate …

Dear President Trump,, Coalition Of Open Access Policy Institutions (Coapi)

Copyright, Fair Use, Scholarly Communication, etc.

We strongly endorse updating existing U.S. policy to eliminate the current 12-month embargo period on articles that report on publicly funded research, as instituted by the Obama administration, and to ensure that they are made immediately available to the public.

Extraordinary Ideas Now Ordinary Income: Incentives Created By The Tax Cut And Jobs Act's New Treatment Of Self-Created Intellectual Property, Savannah Story

Georgia Journal of Law & Technology

No abstract provided.

Fighting The Faceless Foe Known As The Online Trademark Counterfeiter: Forum Shopping Tactics In The Digital Age, Chelsea R. Feagle

Georgia Journal of Law & Technology

This Note proceeds in two main parts. Part II provides a background for understanding trademark counterfeiting claims and remedies. It first examines the federal trademark protections alongside the state trademark protections and details the way in which they differ. Part II then breaks down the number of online trademark counterfeit cases filed in the United States and notes the percentage of those cases which are filed predominately in three federal district courts. Because it is difficult to comprehensively track this data, the principle import of the referenced statistical breakdown should be understood only as attempting to draw general conclusions from …

The Defend Trade Secrets Act And Foreign Theft: The Application Of The Act To Extraterritorial Misappropriation, John Dustin Hawkins

Georgia Journal of Law & Technology

This Note explores the evolution of federal trade secret law in the United States, particularly the enactment of the Defend Trade Secrets Act of 2016. Part II discusses the legislative history of the Act, as well as key provisions and definitions of the Act, which are critical when considering the DTSA's extraterritorial application. Additionally, this Note considers the tests used by courts to determine extraterritorial application in other areas of U.S. law. Part III explains why a uniformly-applied balancing test would best serve the courts in determining the extraterritorial application of the DTSA to reach foreign conduct.

The Eu Copyright Directive: "Fit For The Digital Age" Or Finishing It?, Andrew Tyner

Georgia Journal of Law & Technology

Since its proposal in 2016, the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market ("the Directive" or "the Copyright Directive") has been controversial. While the Directive was rooted in good intentions, intended to "improv[e] the bargaining position ... and the control rightsholders have on the use of their copyright-protected content" in the digital space,' critics loudly proclaimed it as the death of the internet as we know it. Notable architects and pioneers of the Internet, including Tim Berners- Lee (inventor of the World Wide Web) and Jimmy Wales (founder of Wikipedia), penned …