Intellectual Property Law Commons^™

When Love Ends: The Division Of Copyright Between Spouses, Tal Itkin

Marquette Intellectual Property & Innovation Law Review

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A Machete For The Patent Thicket: Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

Monitoring Facebook, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

Few companies still in business have a track record as negative as Facebook. Facebook has paid billions of dollars in government fines and paid hundreds of millions in private settlements. Yet, the financial penalties are actually minimal relative to the harm done. Facebook seems to have been involved one way or another in privacy breaches, organized crime, election manipulation, suicide, and even genocide. Mark Zuckerberg, who still controls Facebook, appears to ignore the consequences of his choices, seemingly prioritizing profits over people. He appears to disregard the law and operate without integrity or honesty, excommunicating insiders who speak out or …

A Tale Of Four Decades: Lessons From Uspto Trademark Prosecution Data, Deborah Gerhardt, Jon J. Lee

Faculty Articles

No abstract provided.

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

Under A Nifty Light: Trademark Considerations For The New Digital World, Willajeane Mclean

Faculty Articles and Papers

No abstract provided.

Marijuana And Patents: The Complicated Relationship Between Patent Rights And The Federal Criminalization Of Marijuana, Reza Roghani Esfahani, Howard Bromberg

Articles

Difficult questions arise in the context of marijuana-related inventions, patent procurement, and patent enforcement. These questions are a subset of the contradictions in the law of marijuana, where the federal government prohibits marijuana use and yet many of the states legalize, regulate, and tax it. This federal prohibition could discourage research into the health effects of marijuana and makes it difficult for marijuana-related innovations to satisfy statutory patentability requirements. It also renders enforcement of marijuana patents questionable, making marijuana businesses and patent owners vulnerable to nonpracticing patent entities, sometimes called "patent trolls."

Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

Articles

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

Unravelling Inventorship, Toshiko Takenaka

Articles

Inventorship, who made an invention, is one of the most important concepts under the U.S. patent system. Incorrect inventorship determinations result in patent invalidity not only because U.S. Constitution requires granting patents to true inventors, but also first-inventorto- file novelty inherited many aspects of first-to-invent novelty which depended on inventorship whether to include prior inventions as prior art. Correcting inventorship may result in sharing patent exclusivity with competitors, which forfeits profits necessary to recover expensive development costs. However, the standard to determine inventorship has been called muddy by judges and commentators because neither the Patent Act nor case law provide …

The Ai-Copyright Challenge: Tech-Neutrality, Authorship, And The Public Interest, Carys Craig

All Papers

Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI. After introducing the AI-copyright challenge in Part 1, Part 2 considers the guiding principles and normative objectives that underlie—and so ought to inform—copyright law and its response to AI technologies. It proposes …

Reverse Confusion And The Justification Of Trademark Protection, Jeremy N. Sheff

Faculty Publications

Theories of private law are dominated by welfarist normative frameworks, and trademark law is no exception. One such framework—the “search costs” theory associated with the Chicago School of law and economics—has long been the primary accepted justification for trademark rights. However, this theory fails to account for numerous features of actual trademark doctrine, as earlier scholarship has shown. This Article demonstrates how one underexamined area of trademark law—reverse confusion liability— is a similarly poor fit with the predictions and prescriptions of conventional economic theory. Plausible economic theories of trademark rights would either refuse to impose liability in reverse confusion cases …

“I Bet You Don’T Get What We Get”: An Intersectional Analysis Of Technology-Facilitated Violence Experienced By Racialized Women Anti- Violence Online Activists In Canada, Nasreen Rajani

Canadian Journal of Law and Technology

Despite growing attention to violence that women face in online settings, a relatively small proportion of academic work centres on the experiences and perspectives of racialized women in Canada. Informed by an intersectional framework, I draw on semi-structured interviews with nine women across Canada, all of whom are involved in anti-violence online activism, about their experiences of technology-facilitated violence (TFV). Their experiences revealed less prominent narratives, including instances of TFV beyond instances of intimate partner violence (IPV) and beyond sources of anonymous trolling by supposed white men, such as violence perpetrated by peers, white women, and racialized men. In this …

Onlife Harms: Uber And Sexual Violence, Amanda Turnbull

Canadian Journal of Law and Technology

Uber markets itself as a technology company that is managed primarily by ML algorithms with the support of human engineers. Yet, in its 2019 Report, the role that its technology played in relation to sexual violence is, for all intents and purposes, absent. Likewise, solutions dealing specifically with the role of technology in facilitating gender-based violence are also missing from the series of initiatives in which Uber has invested that are aimed at preventing sexual violence. Uber was not sufficiently rigorous in defining the problem it was trying to solve. It was a missed opportunity that has resulted in continued …

Intimate Images And Authors’ Rights: Non- Consensual Disclosure And The Copyright Disconnect, Meghan Sali

Canadian Journal of Law and Technology

This article responds to a brand of legal realpolitik that says using property law to respond to the non-consensual distribution of intimate images (NCDII) is appropriate and even necessary, because its remedial frameworks are well developed and provide the relief that is often most sought after by targets of an assault: the immediate removal of photos from online platforms. While some targets are not considered the ‘‘authors’’ of their intimate images, most of the images that are the subject of NCDII are selfies, taken by the target themselves. In these cases, that person rightfully owns the copyright in those images …

On The Internet, Nobody Knows You Are A Dog: Contested Authorship Of Digital Evidence In Cases Of Gender-Based Violence, Suzie Dunn, Moira Aikenhead

Canadian Journal of Law and Technology

We examine various aspects of digital evidence at GBV trials, drawing on relevant Canadian criminal case law. First, we describe some of the unique challenges related to electronic documents generally with respect to determining authorship. Second, we review some of the historical and ongoing practices within the criminal justice system that rely on harmful gendered myths about GBV and note the potential for these myths to emerge in relation to digital evidence. Third, we discuss the duty of investigating police officers to gather the necessary available digital evidence to demonstrate authorship and note potential gaps in current investigatory practices that …

Responding To Deficiencies In The Architecture Of Privacy: Co-Regulation As The Path Forward For Data Protection On Social Networking Sites, Laurent Cre ́Peau

Canadian Journal of Law and Technology

Social Networking Sites like Facebook, Twitter and the like are a ubiquitous part of contemporary culture. Yet, as exemplified on numerous occasions, most recently in the Cambridge Analytica scandal that shook Facebook in 2018, these sites pose major concerns for personal data protection. Whereas self-regulation has characterized the general regulatory mindset since the early days of the Internet, it is no longer viable given the threat social media poses to user privacy. This article notes the deficiencies of self-regulatory models of privacy and contends jurisdictions like Canada should ensure they have strong data protection regulations to adequately protect the public. …

Artificial Intelligence In Canadian Healthcare: Will The Law Protect Us From Algorithmic Bias Resulting In Discrimination?, Bradley Henderson, Colleen M. Flood, Teresa Scassa

Canadian Journal of Law and Technology

In this article, we canvas why AI may perpetuate or exacerbate extant discrimination through a review of the training, development, and implementation of healthcare-related AI applications and set out policy options to militate against such discrimination. The article is divided into eight short parts including this introduction. Part II focuses on explaining AI, some of its basic functions and processes, and its relevance to healthcare. In Part III, we define and explain the difference and relationship between algorithmic bias and data bias, both of which can result in discrimination in healthcare settings, and provide some prominent examples of healthcare-related AI …

Let The Machines Do The Dirty Work: Social Media, Machine Learning Technology And The Iteration Of Racialized Surveillance, Subhah Wadhawan

Canadian Journal of Law and Technology

Post 9/11, where the current social and cultural temperature has constructed Islam as interchangeable with terrorism, digital intermediaries have responded with increased censorship of speech related to, emerging from, or advocating Islamic ideology. At the heart of this paper is the argument that digital intermediaries have relied on the opaqueness of machine learning technology (‘‘MLT”) to realize racialized surveillance, whereby speech concerning Islamic content has been disproportionally censored. This paper maps out how inherent biases concerning the ideology of Islam have been interwoven into the coding and machine learning used by the major tech giants. As a result of the …

Delineating The Legal Framework For Data Protection: A Fundamental Rights Approach Or Data Propertization?, Efe Lawrence Ogbeide

Canadian Journal of Law and Technology

The Charter of Fundamental Rights of the European Union, like other key legal instruments around the globe, grants citizens the right to privacy in Article 7. The Charter, however, further provides for the right to data protection in Article 8. Simply put, the implication of Article 8 of the Charter is that the right to data protection is a fundamental right. The central question in this article is whether data protection indeed qualifies to be categorized as a fundamental right. If not, what other approach(es) to data protection may be implemented?

From Nyan Cat To Nfts: Determining How Canada’S Cultural Property Export And Import Act Applies To Digital Works, Mitchel Fleming

Canadian Journal of Law and Technology

One of Canada’s principal pieces of legislation enacted to protect its cultural patrimony is not well equipped to deal with the rise of digital content creation. Digital works, particularly NFTs, pose a unique challenge to the established regime. This paper seeks to understand how these artistic developments fit within the current legislative framework and whether legislative action is needed to bring these revolutionary mediums within the scope of the Cultural Property Export and Import Act. Ultimately, the author concludes that while digital works may be captured by the Act under specific circumstances, the protectionist policies of the past are …

Officially Obsolete? A Critical Examination Of The Canadian Official Marks Regime And Its Waning Relevancy In Trademark Law, Maddison Tebbutt

Canadian Journal of Law and Technology

When the Trademark Act (‘‘TMA”) came about in 1985, a unique aspect of Canadian trademark law was created: the official marks regime under section 9(1)(n). The official marks regime is available to public authorities and universities as a means of sidestepping the lengthy and expensive process of trademark registration and providing special protection for official marks. Once public authorities and universities obtain an official mark through this system, they are entitled to an expansive monopoly that allows them to use their mark for commercial use, while simultaneously keeping the official mark out of the public domain. Moreover, while …

Metasoftware: Building Blocks For Legal Technology, Houman Shadab

Articles & Chapters

This Article develops a novel concept in information technology called metasoftware. It then applies the concept of metasoftware to developing legal technology.

Metasoftware enables users to create the software of their choosing and stands in sharp contrast to traditional, functional software that is intended for a particular purpose or a defined range of tasks. Functional software is the default type of software that is currently produced and includes word processing, email, social networking, enterprise resource management, online marketplaces, and video game software. Metasoftware, by contrast, is not functional. Metasoftware presents the user with a blank slate upon which to build …

Culture And Fair Use, Michael Goodyear

Articles & Chapters

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.
Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright …

Eviscerating Patent Scope, Shahrokh Falati

Articles & Chapters

The scope of patent claims directed to inventions in the field of pharmaceuticals and biotechnology has been stumped by the Court of Appeals for the Federal Circuit’s recent jurisprudence on 35 U.S.C. § 112. Specifically, the application of a heightened test for enablement of claims to a genus of compounds with functional limitations or a genus of therapeutic antibodies, coupled with an increasingly broader application of the written description doctrine, has resulted in considerable uncertainty in the biopharmaceutical industry. The Federal Circuit’s shift in interpreting 35 U.S.C. § 112 contravenes the statute and Supreme Court precedent by splitting the singular …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

University of Richmond Law Review

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

The "End" Of Neutrality: Tumultuous Times Require A Deeper Value, Carol Pauli

Cardozo Journal of Conflict Resolution

American political talk has grown so fragmented and polarized that some observers say that "[w]e are no longer in any 'public conversation." Accusations of "fake news" are followed by disheartening discoveries that providing people with accurate information may only serve to further entrench their erroneous beliefs. One longtime journalism professor worries aloud that "what's at risk is the idea of a public that is even 'inform-able."' Putting the problem in terms familiar to mediation, can we get the parties back to the table? This essay will focus on journalists, whose ideal has been to maintain a neutral position from which …

Extra Life: An Odr Mediation System As A Moderation Tool For Live Streaming Platforms, Myeonghwan Cha

Cardozo Journal of Conflict Resolution

No abstract provided.