Intellectual Property Law Commons^™

“Whoever Invents Or Discovers”: Artificial Intelligence And The Case For Joint Inventorship, Seth F. Littleford

BYU Law Review

Artificial intelligence (AI) is increasingly important in the modern world. Given its fidelity to—and, in some cases, its surpassing of—human performance, people rely upon AI in myriad settings. The AI era is already here, and the technological advancements to come are even more mind-boggling. The United States Patent and Trademark Office (USPTO) has seen a significant increase in patent applications claiming inventions pertaining to AI, but how does the patent system handle when AI invents?

The U.S. Court of Appeals for the Federal Circuit recently held in Thaler v. Vidal that the Patent Act requires inventors listed on patent applications …

All’S “Fair” In Love & Copyright: Copyright’S Incentivization Of Fiction Through The Second Fair Use Factor & Idea/Expression Dichotomy, Peyton J. Smetana

Catholic University Law Review

Copyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is …

Copyright And Research In Latin America: Law, Courts, And Perceptions, Mariana G. Valente, Alice P. Lana, André P. Houang

Joint PIJIP/TLS Research Paper Series

Research on the intersection of copyright law, research activities, and innovation in Latin America reveals significant deficiencies in the legal framework and public discourse surrounding copyright limitations and exceptions (L&Es) for research purposes. The problem is more visible with modern data assembling and analyzing techniques, such as through artificial intelligence (AI) systems. This study highlights the scarcity of explicit provisions for research-related exceptions in the region by examining copyright legislation, case law, and stakeholder perspectives in six Latin American countries. Despite indications that judicial interpretation is expanding the scope of L&Es, particularly in Brazil, awareness of legal nuances remains low …

Preventing The Importation And Sale Of Genuine Goods Bearing American-Owned Trademarks: Protecting An American Goodwill, Timothy H. Hiebert

Maine Law Review

A trademark's "primary and proper function," it has been said, "is to identify the origin or ownership of the article to which it is affixed." Thus, if a trademark indicates either the original producer or an exclusive distributor as the source of the goods on which it appears, it will be entitled to protection against infringement. Related to this source identification function are a trademark's quality assurance and advertising functions. Because the public comes to associate trademarked goods with a certain standard of quality, a trademark guarantees that the goods on which it appears will meet public expectations about quality. …

Use Of Public Research And Manufacturing Enterprises To Lower Prescription Drug Prices And Increase Innovation, Alex Moss, Dana Brown, S. Sean Tu

Law Faculty Scholarship

This article proposes building on the success of publicly funded drug research and development and expanding the model to include the full cycle development, testing, manufacture and distribution of innovative and affordable new drugs.

Triangulating The Likelihood Of Confusion: Linguistics And Consumer Surveys, Eric Derosia, Jesse Egbert, Thomas Lee

BYU Law Review

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, …

Going Generic: A Linguistics Approach To Genericide In Trademark Law, James A. Heilpern, William G. Eggington, Earl Kjar Brown, Zachary D. Smith

BYU Law Review

This Article examines the phenomenon of trademark genericide—the process by which once-protected brand names like “escalator” and “trampoline” lose their legal status by becoming synonymous with entire product categories. Traditional methods used by courts to assess genericide, such as consumer surveys and dictionary definitions, are often criticized for their subjectivity and lack of scientific rigor. In response, this Article introduces corpus linguistics as a more reliable, data-driven alternative for determining whether a trademark has become generic.

By analyzing real-world language usage through large corpora, corpus linguistics can track the public’s shifting perceptions of a trademark over time. Using case studies …

Disclose By Law, Obfuscate By Strategy: A Corpus-Based Analysis Of Patent Filings, Katherine Ireland, W. Michael Schuster, Tim R. Samples

BYU Law Review

The patent system encourages dissemination of technical information by granting inventors exclusive rights to their inventions in exchange for public disclosure of their technology. The American Inventors Protection Act (AIPA), enacted in 1999, advanced this goal by increasing the scope and speed of disclosure. Previously, filings were published only if and when a patent was granted, but under the AIPA most applications are published eighteen months after filing. The sum of those changes amplified a fundamental tradeoff between protection and exposure. Although patents offer protection, competitors can exploit disclosures by integrating the innovations into their own research and development efforts. …

Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan

Amicus Briefs & Court Filings

Amici are law professors and scholars who focus their scholarship and teaching on intellectual property law, property law, regulatory law, and health law.2 They write to address the plaintiff’s, Novo Nordisk Inc., et al. (Novo), overarching contention that the Medicare drug price negotiation program constitutes an unconstitutional price control. Amici submit this brief to provide the Court with the historical and legal background regarding the constitutionality of government price negotiations and price regulations. The amici explain how Courts have historically ruled on these questions, as well as the far-reaching consequences that a ruling in Novo’s favor would have on the …

A New Frontier: The Music Industry’S Struggle Against Generative Ai, Vaughn Gendron

University of Miami Business Law Review

Since the modern notion of artificial intelligence emerged in 2014, AI has rapidly developed into a technology with vast generative capabilities. This technology has allowed for the creation of copious amounts of AI-generated media content. One of the most impacted industries by this evolution is the music industry. In April of 2023, an unidentified user produced a viral AI-generated song titled “Heart on My Sleeve” in the vocal likeness of both Drake and The Weeknd. The song’s instant popularity among consumers shattered the music industry’s long-held belief that listeners would always prefer human creativity over artificial creation. This shift in …

Wear Your Heart On Your Sleeve, Whether You Like It Or Not: How Federal Regulation Can Address Advances In Biometric Technology, Greg Marcus

University of Miami Business Law Review

The use of biometric data for identification and authentication has become a common practice for people and businesses across the world. While these technologies offer a promising means of enhanced security, the emergence of artificial intelligence and machine learning has enabled the analysis of biometric data to reveal some of our most intimate personal information from simple physical characteristics. The rapid advancement of this technology has brought the issue of regulation to the forefront of discussions in both Congress and state legislatures. Accordingly, many states have proposed, and in several instances passed legislation specifically regulating the collection of biometric data. …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Artificial Authorship On The Big Screen: Regulating Ai In Scriptwriting, Cassie Larson

UC Law SF Communications and Entertainment Journal

While the rise of artificial intelligence (AI) offers exciting, new creative possibilities for the entertainment industry, it also threatens to replace or undercompensate the humans who have been at the backbone of the industry since its inception. AI’s increasing ability to generate human-quality content raises concerns about job displacement and copyright ownership for scriptwriters. While the recent Writers Guild of America (WGA) strike secured several protections, the unique and rapidly evolving nature of AI requires that further legal safeguards be created. This Note argues for additional regulations to ensure that AI remains a collaborative tool for scriptwriters and not a …

Toxic Minimalism On The “Yolo” Court: The Supreme Court’S Dangerous Muddle In First Amendment And Speech-Adjacent Law, Matthew D. Bunker, Emily Erickson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Intellectual Property Liability For Businesses In The Age Of Ai: What New Liabilities Businesses Using Ai Could Face And The Possible Methods Of Self-Protection, Elizabeth Anne Henderson

Michigan Business & Entrepreneurial Law Review

The invention of Artificial Intelligence (“AI”) has triggered a wave of copyright and trademark litigation that will likely shape the intellectual property laws governing AI for the foreseeable future. Lawsuits against AI giants like Meta and OpenAI stand to declare popular uses of AI as actionable infringement as well as possibly reshape how copyright and trademark law view concepts, such as fair use and derivative works in the age of technology. Meanwhile, businesses are pushing forward rapidly with adopting AI and implementing its use in everyday functions. For many of these businesses, AI is a highly desirable but poorly understood …

Time For A Copyright Remix: Learning From Djs’ Problematic Pandemic Livestreams & Reimagining A More Productive Framework For Music On Social Media, Aaron Thompson

Chicago-Kent Law Review

No abstract provided.

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …

Reshaping Intellectual Property Scholarship From Within, Peter K. Yu

Faculty Scholarship

Written for the Symposium collecting papers from the Race + IP 23 Conference, this article explores intellectual property scholarship that has been either overlooked or marginalized. Because scholars of color are often outsiders looking in, the article identifies opportunities to reshape intellectual property scholarship from within. Even though the focus of this article was chosen with readers of this Symposium in mind, its insights will be relevant to all scholars.

This article begins by calling on scholars to develop a deeper appreciation of the intrinsic motivations of authors and inventors. It then discusses the oft-overlooked inequalities of creativity and innovation …

The Grapes Of Roth, Bruce E. Boyden

Washington Law Review

Shortly after Roth Greeting Cards was decided in 1970, its offhand reference to the “total concept and feel” of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, “threatens to subvert the very essence of copyright.” It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. “Total concept and feel” appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on …

Legal Chefs’ Appetizing Taglines To Engage Consumers In The Age Of Social Media: The Struggle Against Trademark Genericide, Emily Mcdonald

Journal of Food Law & Policy

Many have heard the phrases “raisin bran,” “escalator,” “nylon,” and “aspirin,” all of which are “old” trademarks that have undergone genericide. Genericide occurs when a trademark has become common from the customer’s perspective concerning specific goods or services rather than associated with the source, which is usually the company that registered the trademark. In short, businesses are no longer able to use the trademark exclusively. Another common trademark phrase that became generic was “Taco Tuesday.” In light of the prolific use of social media today, recent data and statistics show that “food” has become a predominant category and trend on …

Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim

Brooklyn Journal of Corporate, Financial & Commercial Law

Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …

Emerging Compliance In The Generative Decentralized Era, Nizan Geslevich Packin

Brooklyn Journal of Corporate, Financial & Commercial Law

Is it the end of compliance as we know it? Emerging technologies such as Artificial Intelligence (“AI”), including Generative AI (“GenAI”), and blockchain are reshaping regulatory compliance in the Web 3.0 era. As machine-generated data becomes the norm, traditional models reliant on human oversight are becoming obsolete, necessitating swift adaptation from regulators and industry stakeholders. Historically, compliance was designed to be managed by humans due to the need for critical thinking, ethical considerations, and nuanced decision-making. Yet, in today’s era, this approach is no longer viable. Addressing this need, Regulatory Technology (“RegTech”) has played a key role in modernizing compliance …

Transforming Fair Use, Glynn Lunney

Faculty Scholarship

In the United States, the fate of fair use, and by extension, copyright itself, hang in the balance. In recent years, courts have disagreed over fair use’s proper scope. On the one side are appellate decisions that interpret fair use broadly. While these decisions do not go so far as to suggest that every reuse is fair, they typically use the talismanic phrase “transformative use” and give it a generous and flexible interpretation. On the other side are appellate decisions that interpret fair use restrictively. While again they do not go so far as to suggest no reuse is fair, …

Time To Stop Trip-Ing: The World Needs A New Geographical Indications Agreement, Evan Glatt

Brooklyn Journal of International Law

When it comes to purchasing food and alcohol, a product’s name carries weight and helps consumers make decisions. When the product’s name includes a place and establishes a certain level of quality and expectation, consumers trust that the product is what it purports to be. This concept, the reputation of a particular food product by name, is known as a geographical indication (GI). GIs cover a wide range of products, from the well-known champagne to lesser known products such as Roquefort cheese. GIs create financial value for local producers, contribute to sustainability initiatives, and raise the quality of goods for …

Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu, Francis Gurry, Keun Lee

Faculty Scholarship

While growing disparities in wealth and income are well-documented across the globe, the role of intellectual property rights is often overlooked. This volume brings together leading commentators from around the world to interrogate the interrelationship between intellectual property and economic inequality. Interdisciplinary and globally oriented by design, the book features economists, legal scholars, policy analysts, and other experts. Chapters address the impact of intellectual property rights on economic inequality, the effect of economic inequality on the protection and enforcement of these rights, and the potential use of innovation law and policy to help reduce economic inequality. The volume also tackles …

United States Fish And Wildlife Service Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

FWS response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Environmental Protection Agency Response To The Ofiice Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

EPA response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Department Of Defense Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

DOD response to OSTP memo, 2022: Public Access Plan (December 2024)

Acf Response To Ostp Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

ACF response to OSTP memo, 2022: Public Access Plan (December 2024)

Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation, Srividhya Ragavan

Faculty Scholarship

Cost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best …