Intellectual Property Law Commons^™

Rethinking Patent Law's Exclusive Appellate Jurisdiction, Christa Laser

Cleveland State Law Review

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment …

Keynote At The Cleveland State University College Of Law Ip+ Conference, Kathleen O'Malley

Cleveland State Law Review

Thank you for your kind introduction, Lee. Thank you too for your mentorship, support, and friendship over the years. I would not be where I am today but for having you in my life. And I want to thank both you and Professor Laser for inviting me to join you today—and for providing a soap box to champion the importance of a robust intellectual property system.

Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa

Brooklyn Journal of International Law

There is a current movement by indigenous weavers in Guatemala to protect their textile designs due to the harm caused by the absence of the weavers’ intellectual property ownership over the designs and patterns. The exploitation and appropriation of their designs by domestic and international companies has hurt weavers’ livelihoods and has led to culturally inappropriate and insensitive uses of religious and traditional patterns. Conventional intellectual property law (copyright, trademark, and patent law) fails to protect indigenous peoples’ intellectual property rights. A key weakness within conventional intellectual property law is the emphasis and focus on individuality of the creation process. …

Reforming Copyright Or Toward Another Science? – A Morehuman Rights-Oriented Approach Under The Rebspa Inconstructing A “Right To Research” For Scholarly Publishing, Klaus D. Beiter

Brooklyn Journal of International Law

This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA), as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

Journal Articles

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Frequently Asked Questions: 2022 Public Access Policy Guidance, White House Office Of Science And Technology Policy

Copyright, Fair Use, Scholarly Communication, etc.

Includes a list of frequently asked questions and answers for the 2022 White House Office of Science and Technology Policy (OSTP) Public Access Policy guidance, including answering questions such as "What is meant by public access to federally funded research?" and "What impact will the policy guidance have on specific business models for scholarly publishing?"

Comparative Intellectual Property Protection For Marijuana: United States Vs. The European Union, Jillian Gosser

Global Business Law Review

Protecting intellectual property relating to marijuana is a complicated endeavor. The federal ban on marijuana renders trademark protection difficult at best, and patent protection, while available, still rife with complications. In Europe, the laws pose similar challenges in the protection and enforcement of marijuana related intellectual property. This Note presents a comparative law analysis of the various ways marijuana related intellectual property may be protected in the United States and Europe. Different types of intellectual property protection explored include utility patents, design patents, trademarks, plant patents, Plant Variety Protection Act coverage, and Community Plant Variety Act coverage. This Note explores …

From Patients To Patents: The Disappearing I Of Innovation, Maggi Robert

St. Mary's Law Journal

The creation of the Mayo/Alice two-step test for patent eligible subject matter flipped the patent world upside down. Following its establishment, invalidation rates soared—particularly in the healthcare sector—impacting patients everywhere. The importance of patents in healthcare innovation and innovation generally has been emphasized as the consequences of this framework are realized.

The United States is no longer seen as a clear leader in innovation, and as a result, the economy is at risk. Start-ups and investors have turned to foreign nations where return on their investments in innovation are protected. This level of uncertainty regarding patents has never been seen …

Legal Reform To Enhance Global Text And Data Mining Research, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Text and data mining (TDM) research involves the process of collecting vast amounts of digitized material and using software to analyze and extract information from such information. TDM is a crucial first step to addressing some of the world’s greatest scientific and societal challenges. But, as we show in this article, a patchwork of copyright laws across jurisdictions limits where and how TDM research can occur. We discuss how the World Intellectual Property Organization and legislatures around the world can promote harmonization of copyright exceptions for various research uses. Addressing research uses, including for TDM, in copyright reform can help …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

Measuring The Inventor's Contribution

The University of New Hampshire Law Review

All inventors should be compensated for the value of their contributions. Inventors contribute both to the patent system and to the technology commercialization process by providing access to a qualifying disclosure describing a qualifying idea. Yet today, a schism divides the patent world and the commercial world over the value of these inventive contributions. Unlike the commercial world, the patent world pays inventors for the contributions of noninventor technology commercialization roles. In particular, seminal reasonable royalty cases like Georgia-Pacific and TWM Manufacturing allow patentees to recover infringer profits and proxies thereof—in violation of congressional mandate and the Supreme Court’s opinion …

Legal Reform To Enhance Global Text And Data Mining Research: Outdated Copyright Laws Around The World Hinder Research, Sean M. Fiil-Flynn, Brandon Butler, Michael Carroll, Or Cohen-Sasson, Carys Craig, Lucie Guibault, Peter Jaszi, Bernd Justin Jütte, Ariel Katz, João Pedro Quintais, Thomas Margoni, Allan Rocha De Souza, Matthew Sag, Rachael Samberg, Luca Schirru, Martin Senftleben, Ofer Tur-Sinai, Jorge L. Contreras

Articles & Book Chapters

No abstract provided.

Retrospective And Prospective Study Of The Evolution Of Apc Costs And Electronic Subscriptions For French Institutions, Antoine Blanchard, Diane Thierry, Maurits Van Der Graaf

Copyright, Fair Use, Scholarly Communication, etc.

French Résultats principaux

Coûts 2020

• Dépenses d'abonnement aux périodiques électroniques en 2020: 87,5 M€
• Coûts des APC en 2020: 30,1 M€

Coûts prédits sous l'hypothèse d'une évolution à l'identique des tendances observées:

• Dépenses d'abonnement aux périodiques électroniques en 2030: 97,5 M€
• Coûts des APC en 2030: 50,6 M€

Coûts prédits dans un scenario d'accélération vers le gold OA:

• Coûts des APC en 2030: 68,7 M€

Coûts prédits dans un scenario de hausse du libre accès green et transition du libre accès hybride vers gold:

• Coûts des APC en 2030: 38,5 M€

Coûts prédits pour 90% d'articles d'auteurs correspondants affiliés en …

“That Little Girl Was Me”: Kamala Harris And The Civil Whites Of 1964 And Beyond, Maureen Johnson

Cardozo Law Review

No abstract provided.

How Sample Clearance Has Affected Hip-Hop Music-Making, Bryan J. Brewster

Capstone Projects and Master's Theses

This paper will explain how sample clearance has impacted hip-hop music-making. It will explain what a sample is and show the historical significance of sampling in hip-hop. I will briefly discuss the basics of copyright and the process of clearing a sample. This paper will also look into legal cases of copyright infringement to show the impact of specific cases and analyze data to determine if the amount of sample clearance has changed because of the decisions of the courts. The main goal of this paper is to highlight the significance of sampling in hip-hop, the inherent challenges of legally …

Navigating A Multi-Billion Dollar Industry: Protecting Drug-Related Inventions To Further Research And Development, Minal Patel

Brooklyn Journal of Corporate, Financial & Commercial Law

Even with advancements in science and technology, pharmaceuticals continue to find themselves tethered to patent protection guidelines that once ensured revenue would continue to flow and provide funding for the next blockbuster drug or antibodies. However, as the Federal Circuit appears to inch towards unpredictability in the realm of patent validity, challenges involving patenting are imminent. In fact, gaps are forming in the ability of pharmaceuticals to further research and develop drugs. This Note proposes a solution that encapsulates a more precise standard supported by economic and policy rationales to determine patent validity. It begins with the general requirements of …

Copyright And Federalism: Why State Waiver Of Sovereign Immunity Is The Best Remedy For State Copyright Infringement, Leroy J. Ellis V

Northwestern Journal of Technology and Intellectual Property

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission.

However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay …

Rethinking Equitable Estoppel In Patent Law, Joshua J. Lustig

Northwestern Journal of Technology and Intellectual Property

In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit's recent equitable estoppel jurisprudence is inconsistent with equity's goal of fairness and presents a new theory of equitable estoppel …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

BYU Law Review

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation.

But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Data Quality Assurance At Research Data Repositories, Maxi Kindling, Dorothea Strecker

Copyright, Fair Use, Scholarly Communication, etc.

This paper presents findings from a survey on the status quo of data quality assurance practices at research data repositories.

The personalised online survey was conducted among repositories indexed in re3data in 2021. It covered the scope of the repository, types of data quality assessment, quality criteria, responsibilities, details of the review process, and data quality information and yielded 332 complete responses.

The results demonstrate that most repositories perform data quality assurance measures, and overall, research data repositories significantly contribute to data quality. Quality assurance at research data repositories is multifaceted and nonlinear, and although there are some common patterns, …

The Impact Of Library Publishing Through The Lens Of The United Nations Sustainable Development Goals, Marie O'Neill

Copyright, Fair Use, Scholarly Communication, etc.

Abstract

As library publishing programmes expand around the world, reports and research pertaining to standards and workflows have proliferated. This paper calls for library publishing programmes to explore the impact of their pogrammes at local, national and international level in relation to their contribution to open access publishing, EDI agendas and the United Nations Sustainable Development Goals. The presentation highlights the UN's SDG Publishers Compact and argues that the SDGs are an ideal lens through which library publishers could examine their impact as library publishers have a strong publishing record in areas such as gender, education and climate as examples.

Intellectual Property & Information Law Fall 2022 Speaker Series, Benjamin N. Cardozo School Of Law

2022–2023 Flyers

Join us for a conversation with Jonathan Herstoff, Partner at the law firm of Haug Partners LLP (formerly Frommer Lawrence & Haug LLP).

The Intersection Of Data Science, Tech And Law, Cardozo Law And Data Science Society, Cardozo Business Law Society, Cardozo Antitrust Society, Cardozo Intellectual Property Law Society (Ipls)

2022–2023 Flyers

No abstract provided.

Centering Black Women In Patent History, Jessica Silbey

Faculty Scholarship

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, …

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

IP Theory

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his …

Automatic Takedowns: How Contentid Has Changed Copyright Enforcement, Cardozo Fame Center, Cardozo Entertainment Law Society, Cardozo Intellectual Property Law Society

2022–2023 Flyers

No abstract provided.

Community Forum On The 2022 Ostp Public Access Policy Guidance [Presentation Slides], White House Office Of Science And Technology Policy

Copyright, Fair Use, Scholarly Communication, etc.

Included:

● Public access background and context

● Summary of the 2022 OSTP Memorandum

● Clarification about the scope of the 2022 OSTP Memorandum

● Timeline for agency adoption of the 2022 OSTP Memorandum

● Agency perspectives: National Aeronautics and Space Administration (NASA), National Institutes of Health (NIH), and Institute of Museum and Library Services (IMLS)

● Questions and answers

Against Secondary Meaning, Jeanne C. Fromer

Notre Dame Law Review

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya

Joint PIJIP/TLS Research Paper Series

This report is based on desk research conducted from June 2021 to May 2022 by way of a survey of publicly available information on Reproduction Rights Organisations (RROs) in all 55 African Union (AU) member states. It is the first of a two-part study. The second part of the study will be conducted as empirical research where data will be obtained from relevant stakeholders in the collective management systems of African countries to address key issues flagged in this report as requiring further evidence.

This report examines the current status of RROs in Africa to help inform policy and legislative …

Discretionary Denial Of Inter Partes Review And The Patent Trial And Appeal Board, Xinni Cai

Fordham Law Review

The inter partes review (IPR) is an administrative procedure conducted by the Patent Trial and Appeal Board (PTAB), an adjudicative body within the U.S. Patent and Trademark Office (USPTO). IPR provides an opportunity for third parties to challenge a patent’s validity after it has already been granted. A petitioner can file a petition with the PTAB to “institute” IPR. If the review is instituted, the PTAB considers the evidence presented and issues a final written decision, either holding the patent valid or striking it down as invalid. Although IPR was introduced as an alternative to litigation, it is often used …