Intellectual Property Law Commons^™

Paternity, Protection, And Pirates: A Queer Theory Analysis Of Intellectual Property Metaphors, Eden Sarid

IP Theory

Intellectual Property and queer theory share a fundamental concern with the interplay between private and public, tangible and intangible, and language and form. Queer theory emphasizes how language impacts the construction of identity and belonging, highlighting that discourse plays a pivotal role in structuring gender, sexuality, and normativity. Intellectual Property is often portrayed as strictly neutral, laser-focused on spurring creativity and innovation. However, is this portrayal reflective of reality? And does this purported neutrality hold up in IP’s rhetoric? By examining two principal IP terminologies through a queer lens – the term “protection” to describe IP legal privilege, and the …

The Mathematics Of Regulatory Fragmentation: Understanding The Multiplicative Costs Of State-Level Platform Requirements, Amanda Reid

IP Theory

The recent wave of state-level social media regulation represents an unprecedented experiment in territorial control of digital platforms. While constitutional questions around state authority remain central to these debates, this article examines a distinct but complementary concern: the mathematical reality of how overlapping technical requirements multiply compliance burdens. These laws aim to protect youth online through technical mandates, yet they create a regulatory patchwork that generates multiplicative rather than additive costs. Following combination theory [N(N-1)/2], each new state regulation creates conflict points with existing requirements.

This article analyzes how this regulatory multiplication affects platform architecture, user experience, and safety outcomes. …

Under The Radar: The Hidden Harms Of Patent Practices In Defense Contracting, Hunter Schmittou

IP Theory

28 U.S.C. § 1498 allows the federal government and its contractors to use patented technologies without prior authorization, with the government assuming liability for infringement. While originally intended to facilitate procurement, its modern application has weakened patent protections, allowing contractors to incorporate patented innovations with minimal legal or financial consequences. This system disincentivizes private-sector investment in military technology, distorts competition, and increases procurement inefficiencies, ultimately placing the burden of infringement on taxpayers. The resulting imbalance not only stifles innovation but also entrenches reliance on a small group of dominant defense contractors, reducing technological diversity and slowing progress. Addressing these shortcomings …

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

"Sufficiently Distinct" Is Insufficient To Determine Design Patent Infringement, Perry Saidman

IP Theory

The “ordinary observer” test for design patent infringement essentially asks whether the patented and accused designs are “substantially the same” in overall appearance. Although courts are very skilled in listing differences between the two designs, the final infringement determination is very subjective, being based on the personal observations and feelings of the fact-finder.

In the 2008 en banc decision of Egyptian Goddess v. Swisa, the Federal Circuit abolished the “point of novelty” test that, despite its flaws, had brought some objectivity to the infringement determination. In its place, the Court in Egyptian repeatedly emphasized the need to view the …

A Patent System For Temple Grandin, Andrew Chin

Touro Law Review

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

And The Oscar For Best “Original” Screenplay Goes To . . . Chatgpt: Does The Use Of Ai In Scriptwriting Devalue Hollywood Writers?, Harrison Stern

Touro Law Review

No abstract provided.

Makeup And Made-Up Protection: Unveiling The Need For Stronger Legal Protections Against Makeup Dupes Within The Luxury Beauty Industry, Crystal Couso

St. Thomas Law Review

To strengthen trademark protections for luxury beauty brands against makeup dupes, this Comment proposes amending the Lanham Act to combat the rise of makeup dupes. Part II provides a brief background on trade dress laws and the elements required to establish a claim under the Lanham Act. Part III highlights the current inadequacies of the current trade dress protections afforded by the Lanham Act, including its failure to account for generic product designs and the irrelevance of consumer confusion in makeup dupe cases. Part IV proposes a novel solution to modify the Lanham Act to accommodate the makeup dupe phenomenon. …

United States Environmental Protection Agency Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

US EPA SIP

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Patents Used In Patent Office Rejections As Indicators Of Value, Christopher A. Cotropia, David L. Schwartz

Law Faculty Publications

This paper introduces a novel approach to measure a patent's economic value by examining whether the patent's disclosure leads to rejection of another pending US patent application. This approach considers the use of the patent by the US Patent and Trademark Office (USPTO) in office action rejections on the grounds of novelty or obviousness, as well as its citation as an X or Y reference in a European Patent Office (EPO) search report, which provides analogous information. Unlike conventional citation metrics widely employed by economists, the novel metric is arguably more closely tied to private value, as it is centered …

Artificial Intelligence: Catalyst For New Policies Or A New Wave Of Design Piracy?, Blagovesta Leroy

FIU Law Review

The absence of adequate intellectual property protection for fashion designs in the U.S.A. not only undermines the creativity and livelihoods of designers but also fosters the fast fashion industry, contributing to global resource unsustainability and human rights concerns in overseas manufacturing facilities. As Artificial Intelligence (“AI”) advances rapidly, there is a growing concern that its deployment in the fashion industry could accelerate these issues. This paper explores the impact of AI on the fashion industry, highlighting the shortcomings of the existing U.S. intellectual property framework in protecting designers from AI-driven design replication and counterfeiting. Drawing insights from the EU design …

Deceptive Exploitation: Deepfakes, The Rights Of Publicity And Privacy, And Trademark Law, Michael D. Murray

Law Faculty Scholarly Articles

This article addresses the application of right of publicity, right of privacy, and trademark law to the problem of deepfakes. It will explore the routine and not so routine ways that personality and persona attributes are exploited in traditional privacy contexts and publicity contexts. It will also examine the use of First Amendment defenses in legal actions traditionally associated with the exploitation of celebrities, sports figures, and other persons under state law theories of name-image-likeness exploitation, as well as and federal trademark law theories of false endorsement and false designation of origin.

Part I provides an introduction and background to …

Best Kept Secret: The Hidden Health Costs Of Corporate Confidentiality, Cynthia M. Ho

Faculty Publications & Other Works

Although patents are well known to negatively impact health when drugs are unaffordable, trade secrets also harm health, and in more ways than patents. Patented drugs harm public health simply by temporarily increasing prices on treatments. Trade secrets, on the other hand, can not only increase treatment costs, but also hide knowledge needed for effective medical treatment. Also, because patents, but not trade secrets, have a limited term, patent health harms clearly terminate while trade secret harms do not. Moreover, the public may not even be fully aware of all trade secret health harms because trade secret information is, by …

Re-Defining Direct Copyright Infringement In The Digital Age: The Shortcomings Of Abkco, Inc. V. Sagan's "Presses The Button" Standard, Shelby Mcswan

Buffalo Law Review

This Comment offers a broader reading of direct copyright infringement. The definition of a direct infringer must go beyond the person who “presses the button,” and extend to those who authorize, instruct, or force another to commit an act of infringement. A broader reading not only ensures that direct liability in copyright law is uniform with other areas of the law, but it also ensures that copyright law protects those who it was meant to protect and punishes those who are truly at fault. Part I of this Comment provides history and background information on the development of intellectual property …

An Investigation Into Artificial Intelligence And Intellectual Property From An Economic Perspective, Jackson Benjamin Bram Girard Lasalle

Honors Theses and Capstones

This paper investigates the debate around recent developments in Artificial Intelligence and its impact on intellectual property laws from an economic perspective.

Copyright, Ebooks, And The Future Of Digital Lending, Mary Lafrance

Scholarly Works

Public libraries face a digital lending crisis. Even as library patrons demand greater access to digital materials, eBook publishers have subjected libraries to onerous licensing terms. These include prices substantially higher than those charged to the general public, as well as stringent constraints on license duration and/or loan volume, forcing many libraries to repurchase their eBooks every one or two years. Some publishers are releasing new books only in digital formats, making it even more costly for libraries to maintain robust collections. eBook publishers also compel libraries to use specific digital lending platforms which pose risks to patron privacy. At …

Cross-Border Limitations And Exceptions To Copyright: “Powered By Ai”, Marketa Trimble

Scholarly Works

Businesses and institutions that wish to utilize copyright protected works in multiple countries face a multiplicity of national copyright laws; although national copyright laws have been harmonized in accordance with several international treaties and harmonized even more in the European Union member states by European Union legislation, countries’ copyright laws continue to vary. The multiplicity of national copyright laws raises costs of transnational operations, including for businesses and institutions that rely on limitations and exceptions to copyright (“L&Es”) in multiple countries. For example, AI companies might want to rely on L&Es to train and deploy their AI in multiple countries, …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

A Comparative Study On The Originality Of Ai-Generated Artworks: What Can Copyright Laws Learn From Refik Anadol?, Söğüt Atilla

National Law School of India Review

Originality is a fundamental requirement for works to receive copyright protection. However, as the term lacks a universally accepted definition, interpretations of originality vary across jurisdictions. This article first examines key theories underpinning copyright law to justify the necessity of an originality threshold. It then analyses how the United States, the United Kingdom, India, China, and the European Union define and apply this criterion. In the final section, the article argues that, these jurisdictions, when applying their well-established principles and case law consistently, can accommodate findings of originality in AI-generated artworks. The article critiques the misconception shared by some jurisdictions …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

A Program To Improve The Efficiency And Quality Of Patent Examination, N. Hylton, Keith, Lynn Richards, Madisyn

Santa Clara High Technology Law Journal

In this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21% to …

Recent Changes In Discretionary Denials Of Drug Patent Challenges, S. Sean Tu, Arti K. Rai, Aaron S. Kesselheim

Faculty Scholarship

Recent policy shifts at the U.S. Patent and Trademark Office (USPTO) have sharply limited the use of two administrative pathways for patent reviews, inter partes review (IPR) and post-grant review (PGR). Congress created these administrative pathways to provide a faster and less costly way to challenge weak patents. Recently, the USPTO has expanded the use of “discretionary denials,” invoking a new “settled expectations” rationale that blocks IPR petitions for patents more than about six years old. From May to September 2025, 60% of 506 requests for discretionary denial were granted, triple historical levels, including one-third involving drug patents. These changes …

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

From Ambiguity To Overreach: The Ftc's Questionable Authority To Ban Non-Competes, Taylor Ray Pelton

Cybaris®

No abstract provided.

Patching The Cfaa So Researchers No Longer Pay, Joshua Baker

Cybaris®

No abstract provided.

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

When Should Training An Ai Model Prevail Against Copyright Infringement?, Jeffrey Greenbaum

Oklahoma Law Review

No abstract provided.

A Fear Of Ideas? Social Media, Foreign Influence, And National Security In A New Era Of Great-Power Competition, Michael Park

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent spate of legal restrictions on the use of TikTok and other foreign-controlled social media applications highlight concerns over personal data collection, but also how fears over the potential foreign influence of ideas from adversarial foreign governments—whether by propaganda, censorship, or disinformation—have re-emerged in the national security debate. Yet there are concerns that this new era of great power competition will be the basis for justifying overreaching speech regulations that hinder access to information and ideas under the aegis of national security. This work attempts to examine the recent enactment of speech restrictions or bans on foreign-controlled applications within …