Intellectual Property Law Commons^™

Beyond The "Black Box", Charlotte A. Tschider

Faculty Publications & Other Works

As algorithms have become more complex, privacy and ethics scholars have urged artificial intelligence (AI) transparency for purposes of ensuring safety and preventing discrimination. International statutes are increasingly mandating that algorithmic decision-making be explained to affected individuals when such decisions impact an individual's legal rights, and U.S. scholars continue to call for transparency in automated decision-making.

Unfortunately, modern Al technology does not function like traditional, human-designed algorithms. Due to the unavailability of alternative intellectual property (IP) protections and their often dynamically inscrutable status, algorithms created by Al are often protected under trade-secrecy status, which prohibits sharing the details of a …

Copyright Law Cannot Copyright Law—Georgia V. Public.Resource.Org Inc., 140 S.Ct. 1498 (2020), Andy Taylor

Mitchell Hamline Law Review

No abstract provided.

Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider

Faculty Publications & Other Works

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned to reduce climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight, they will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient.

The Food and Drug Administration (FDA), the administrative agency responsible for overseeing the …

Avoiding The Trips Trap: A Path To Domestic Disclosure Of Clinical Drug Data Consistent With International Norms, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Could Private Legislation Be The First Key To Unlocking The Nation’S Information Resources In The Battle Against Misinformation?, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Unfiltered, unverified information flows freely on the web and is much more easily found and used than reliable sources. There are logical reasons for this, as quality, reliable information often costs both time and money to investigate, verify, and publish. However, that type of investment only justifies the charging for the information at the outset, not the cabining of it once it is available and has been purchased. Where public libraries have acquired content, they should be allowed to maximize its use in society within the bounds of copyright. Such use is within the spirit of copyright and its hope …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

Scholarly Works

This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Scholarly Works

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Scholarly Works

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one’s trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on …

Emotions And Intellectual Property Law, Margaret Chon

Faculty Articles

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Perplexities Of Patent Prosecution History: Procedure Over Principle?, David Vaver

Articles & Book Chapters

What is it about patent legislation? Speaking for the Supreme Court in 1981, Justice Dickson, later Chief Justice, said of the disclosure provision in the Patent Act (now subsection 27(3)) that:

"[i]t gives the impression of a mélange of ideas gathered at random rather than an attempt to enunciate, clearly and concisely, a governing principle or principles. This is perhaps understandable in that the section is the product of amendment over a period of many years. The language simply does not lend itself to a tight, literal interpretation. It is, and should be treated as, a parliamentary pronouncement, in general …

That's Not Fair Use: Why Rule 68 Copyright Defendants Canno Recover Post-Offer Attorney's Fees, Ryan Kaiser

American University Law Review

Federal Rule of Civil Procedure 68 (Rule 68) is a cost-shifting rule that allows a non-prevailing defendant who made an offer of judgment more favorable than the final judgment to recover costs incurred from the point the offer was made. Until the mid-1980s, whether the rule could apply to the attorney’s fees was the source of much debate. In 1985, the U.S. Supreme Court provided a partial answer when it decided Marek v. Chesny, holding that Rule 68 operates to preclude a civil rights plaintiff from recovering post-offer attorney’s fees. The Court stated that Rule 68 costs include all costs …

What Is "Likely To Be Confusing": About Trademark Law: Reconsidering The Disparity Between Registration And Use, Lorelei D. Ritchie

American University Law Review

Federal trademark rights in the United States are widely considered to be use based. That is, the right derives from the use. Therefore, one might expect that federal trademark registrations would necessarily reflect the marketplace realities of the use of a mark. Based on Constitutional and statutory enablement, this is correct. It is not, however, how the trademark registration system has been implemented by the Court of Appeals for the Federal Circuit and by the U.S. Patent and Trademark Office.

In this regard, there is a perception among judges and practitioners alike that marketplace realities are not, and should not, …

The Trade Secrecy Standard For Patent Prior Art, Sharon Sandeen, Camilla A. Hrdy

Faculty Scholarship

A fundamental criterion of patentability is that an invention must be new as compared to the prior art—the corpus of preexisting knowledge and technology already available to the public. If an invention is in the prior art, or rendered obvious by it, it cannot be patented.

The U.S. Patent Act has traditionally envisioned a categorical approach for deciding what counts as prior art. Under this approach, courts are supposed to decide whether a particular disclosure about the invention (a reference) falls within one of the categories listed in Section 102 of the Patent Act, such as “described in a printed …

Striking The Right Balance: Following The Doj's Lead For Innovation In Standardized Technology, Kristen Osenga

Law Faculty Publications

Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these …

Patents As Signal Of Quality In Crowdfunding, Christopher A. Cotropia

Law Faculty Publications

Patents and crowdfunding both attempt to foster early stage innovations. In theory, patents signal quality and value to attract investment and buyers and ultimately facilitate commercialization. Crowdfunding allows multiple individuals to make small contributions to finance start-up ventures. This Article reports on two related studies investigating the interaction between these two innovation tools by determining the impact of a crowdfunding campaign’s patent status on the campaign’s success and delivery. The first study examines 9,184 Kickstarter campaigns in patent-eligible categories to determine whether patented or patent-pending labeled projects are more likely to reach their funding goal and in turn achieve actual, …

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald

Scholarly Works

The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Faculty Scholarship

Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …

Intellectual Property And Ethnography: A Qualitative Research Approach, Jessica Silbey

Faculty Scholarship

This chapter describes the processes of and justifications for qualitative empirical research in intellectual property (IP) as compared to other research methods, such as quantitative empirical approaches and theoretical economic analyses of law. It provides examples of these research methods, explains the reasons for pursuing a qualitative approach, and details a qualitative research agenda in the context of intellectual property law, as well as a step-by-step method of data collection and data analysis.

Payin’ The Price To Grab A Slice…Of Music! A Guide To Music Licensing For Businesses, Nila Jackson

Cybaris®

This paper provides information that may be useful to people seeking to acquire music licenses for their places of business and is primarily focused on licensing for food and drink establishments. However, other business types that use live or recorded music in their establishments may find the information useful as well. The purpose of this paper is to provide a brief history of copyright law, and an overview of music licensing to give business owners a better understanding of copyright as it relates to public performance.

Suggested Improvements To Mandatory Mediation Scheduling During International Trade Commission (Itc) Section 337 Investigations, Jeff Nall

Cybaris®

No abstract provided.

Panel 2: Distinctiveness In The Age Of The Internet, Barton Beebe, David H. Bernstein, Laura A. Heymann, Alexandra J. Roberts, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the role of consumer perception in determining whether a term is generic or distinctive for trademark purposes, emphasizing that words are context-dependent and not inherently generic or distinctive. It highlights the importance of assessing consumer understanding and use of terms in specific contexts, as well as the need for courts to consider multiple forms of evidence, including surveys, mark talk, and broader marketplace data, to make informed decisions. The analysis also touches on policy considerations, such as keeping certain features free for competition and consumer use, which may influence legal outcomes.

Data As The New Oil: A Slippery Slope Of Trade Secret Implications Greased By The California Consumer Privacy Act, Megan Marie Miller

Cybaris®

Following the European model of the General Data Protection Regulation (GDPR), the state of California implemented the California Consumer Privacy Act (CCPA) on January 1, 2020. The CCPA allows any California consumer to demand to see all of the information that a company has saved on them; consumers can also request a full list of all the third parties that their data is shared with, sold to, and for what commercial purpose. This paper reviews the implications of a new law on the disclosure of trade secrets like client lists and algorithms that manipulate consumers’ data. Ultimately, the issue comes …

Infinite Setlist: Analyzing Pioneer Dj’S Catalogue Streaming Partnerships With Beatport And Soundcloud, Nicholas Rivera

Cybaris®

The purpose of this paper is to examine the partnerships Rekordbox has with SoundCloud and Beatport, determine if user agreements of each platform legally allow the partnerships to occur, what the implications are of using the music streaming service for live performances at venues, what the implications are of streaming music for live streamed performances via the internet, satellite radio, and terrestrial radio, and determine which types of copyright royalties need to be paid to who and by whom.

Independent Filmmaking In The Final Frontier: Intellectual Property Issues With Making Independent Films In Space, Jesse Green

Cybaris®

No abstract provided.

Forcing Creativity: An Analysis Of Chinese Ip Subsidies And How They Should Be Assessed Under Existing International Trade Agreements, Taylor Stemler

Cybaris®

No abstract provided.

Trade Secrets And Personal Secrets, Lital Helman

University of Richmond Law Review

This Article aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that the trade secrets regime forbids the unauthorized use of a business’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to personal secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their in- formation.

This asymmetry of …

Mark Of The Devil: The University As Brand Bully, James Boyle, Jennifer Jenkins

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, universities have been accused in news stories of becoming “trademark bullies,” entities that use their trademarks to harass and intimidate beyond what the law can reasonably be interpreted to allow. Universities have also intensified efforts to gain expansive new marks. The Ohio State University’s attempt to trademark the word “the” is probably the most notorious. There has also been criticism of universities’ attempts to use their trademarks to police clearly legal speech about their activities. But beyond provocative anecdotes, how can one assess whether a particular university is truly bullying, since there are entirely legitimate reasons for …