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Articles 91 - 120 of 187
Full-Text Articles in Intellectual Property Law
The Landscape Of Collective Management Schemes, Daniel J. Gervais
The Landscape Of Collective Management Schemes, Daniel J. Gervais
Vanderbilt Law School Faculty Publications
Collective management comes in many shapes and sizes. There is, however, an interesting definition proposed by WIPO: [T]he term “collective management” only refers to those forms of joint exercise of rights where there are truly “collectivized” aspects (such as tariffs, licensing conditions and distribution rules); where there is an organized community behind it; where the management is carried out on behalf of such a community; and where the organization serves collective objectives beyond merely carrying out the tasks of rights management . . . . In contrast, “rights clearance organizations” are those which perform joint exercise of rights without any …
League Parity: Bringing Back Unlicensed Competition In The Sports Fan Apparel Market, David Franklin
League Parity: Bringing Back Unlicensed Competition In The Sports Fan Apparel Market, David Franklin
Chicago-Kent Law Review
Should professional sports teams and collegiate institutions have an exclusive right to merchandise their logos? Recent court decisions have effectively provided these organizations with a monopoly in the fan apparel marketplace, as retailers who are not "officially licensed" by the underlying team or university are likely to face trademark infringement liability. In some contexts, this extension of trademark law has prevented companies from selling merchandise that merely displays a team's color scheme. However, such a broad prohibition on the use of team logos is inconsistent with the goal of trademark law, which is intended to prohibit uses of a mark …
Innovative Copyright, Greg Lastowka
Innovative Copyright, Greg Lastowka
Michigan Law Review
For over a decade, Michael Carrier has been exploring the intersection of antitrust and intellectual property ("IP") law, contributing many articles that offer new solutions and approaches to the vexing problems confronting the law of innovation. Carrier's academic writing is situated in a voluminous scholarly discourse about the appropriate rules and goals of the laws of copyright, patent, and antitrust. While Carrier easily could have written an "insider" tome for specialists in this area, his new book, Innovation for the 21st Century, is targeted at a broader audience. Carrier's book is directed at legislators, jurists, and opinion makers-as well as …
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Michigan Telecommunications & Technology Law Review
Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …
A Patent Misperception, Elizabeth I. Winston
A Patent Misperception, Elizabeth I. Winston
Scholarly Articles
Antitrust and intellectual property laws promote innovation and competition. As long as the costs of promotion do not exceed the benefit to society, then the laws act in harmony. Discord arises when patent holders use public and private ordering to restrain competition, restrict downstream trade, prevent the development of competing products and limit output by competitors. Using the Patent Act and the misperception of antitrust immunity to create a parallel and under-regulated legal system allows a small number of patent holders to coordinate their behavior to maximize profits and minimize competition. The Patent Act provides no shield to prosecution for …
International Cooperation And The Patent-Antitrust Intersection, Stephen Yelderman
International Cooperation And The Patent-Antitrust Intersection, Stephen Yelderman
Journal Articles
Commentators have long recognized the need to coordinate questions at the patent-antitrust intersection with other policy levers available under patent law. In the international context, however, control over patent policy has been fractured and entrusted to diverse decisionmakers. Many details of patent law are tightly coordinated by international agreement, while others related to antitrust are left to national discretion. This Article evaluates the consequences of this fracture, and notes ways in which the prevailing treaty regimes (the Paris Convention and the TRIPS Agreement) distort incentives for national policymaking. National discretion at the patent-antitrust intersection can be expected to result in …
The Intel And Microsoft Settlements, Robert H. Lande
The Intel And Microsoft Settlements, Robert H. Lande
All Faculty Scholarship
This article briefly compares and contrasts the recent U.S. Federal Trade Commission's antitrust settlement with Intel, and the antitrust cases brought against Microsoft. The article praises the FTC's settlement with Intel, and predicts that history will judge it very favorably compared to the settlement by the U.S. Department of Justice of its antitrust case against Microsoft.
Using Competition Law To Promote Access To Knowledge, Sean Flynn
Using Competition Law To Promote Access To Knowledge, Sean Flynn
Contributions to Books
One of the points of convergence among the many strands of the A2K movement is resistance to the one-size-fits-all ratcheting up of intellectual property provisions around the world. The resistance is grounded in analysis showing that intellectual property rules often create social costs that far outweigh their intended benefits. Much of the A2K movement’s advocacy for limitations of intellectual property rights is located within the field of intellectual property law – promoting the inclusion and use of balancing mechanisms within the laws granting intellectual property rights. But intellectual property rights are also shaped and limited by their interaction with other …
Book Review: Reviewing Part Iii Of Innovation For The 21st Century: Harnessing The Power Of Intellectual Property And Antitrust Law, Dennis D. Crouch
Book Review: Reviewing Part Iii Of Innovation For The 21st Century: Harnessing The Power Of Intellectual Property And Antitrust Law, Dennis D. Crouch
Faculty Publications
I have very much enjoyed reading Professor Michael Carrier's important new book on the intersection of law and innovation, and greatly appreciate his contributions to the field. In this short essay, I will focus my discussion on my sole area of expertise—patent law. Carrier takes-on the subject of patents in Part III of his book. I agree with most of what Carrier writes. To make this essay more interesting, I focus on some of our areas of apparent disagreement.
Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier
Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier
Michigan Law Review
A tidal wave of high drug prices has recently crashed across the U.S. economy. One of the primary culprits has been the increase in agreements by which brand-name drug manufacturers and generic firms have settled patent litigation. The framework for such agreements has been the Hatch-Waxman Act, which Congress enacted in 1984. One of the Act's goals was to provide incentives for generics to challenge brand-name patents. But brand firms have recently paid generics millions of dollars to drop their lawsuits and refrain from entering the market. These reverse-payment settlements threaten significant harm. Courts nonetheless have recently blessed them, explaining …
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
American University Law Review
Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …
Intellectual Liability, Daniel A. Crane
Intellectual Liability, Daniel A. Crane
Articles
Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Articles
Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …
Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande
Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande
All Faculty Scholarship
This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.
Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler
Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler
Marquette Intellectual Property Law Review
This Article criticizes the institutional setup in which the antitrust policies regarding IP exploitation are designed and enforced. The author compares how IP licensing is scrutinized by antitrust regimes in the European Union and the United States. The result of that comparison leads to the conclusion that any attempted resolution of the IP-Antitrust dilemma will remain inadequate as long as it is antitrust-based, that is, regulated by antitrust laws or guidelines designed by antitrust-agencies. The author argues that antitrust concerns can and should be accounted for through proper construction and application of the IP laws themselves. The article suggests a …
Antitrust Liability For Refusal To License Intellectual Property: A Comparative Analysis And The International Setting, Rita Coco
Marquette Intellectual Property Law Review
Antitrust and IP law both share the goals of promoting innovation and benefiting consumers. A potential for conflict exists, however, when a dominant firm's refusal to license IP rights affects the dynamics of competition. Antitrust intervention in IP rights can reduce incentives to invest, whereas a failure to allow anticompetitive behavior can harm consumers and competitors while reducing the efficiency of the economic system. The author reviews the European and United States approaches to monopolization claims involving IP rights. The European approach is limited by the mismatch between national enforcement of IP rights and community enforcement of antitrust law. The …
Legal Turbulence After : New Possibilities For Patent Licensing At Research Institutions, Jonathan Hillel
Legal Turbulence After : New Possibilities For Patent Licensing At Research Institutions, Jonathan Hillel
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Why The "Single Entity" Defense Can Never Apply To Nfl Clubs: A Primer On Property-Rights Theory In Professional Sports, Marc Edelman
Why The "Single Entity" Defense Can Never Apply To Nfl Clubs: A Primer On Property-Rights Theory In Professional Sports, Marc Edelman
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Beyond Microsoft: Intellectual Property, Peer Production And The Law’S Concern With Market Dominance., Daryl Lim
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Broadcasting The 2006 World Cup: The Right Of Arab Fans Versus Art Exclusivity, Bashar H. Malkawi
Broadcasting The 2006 World Cup: The Right Of Arab Fans Versus Art Exclusivity, Bashar H. Malkawi
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Illinois Tool Works: Allocating The Burden Of Proving Market Power In Patent Tying Cases, Dennis J. Abdelnour
Illinois Tool Works: Allocating The Burden Of Proving Market Power In Patent Tying Cases, Dennis J. Abdelnour
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
The Robinson-Patman Act And Consumer Welfare: Has Volvo Reconciled Them?, John B. Kirkwood
The Robinson-Patman Act And Consumer Welfare: Has Volvo Reconciled Them?, John B. Kirkwood
Seattle University Law Review
In this article, I address that broader question. In Part II, I summarize the facts and opinions in Volvo, particularly the final section of the majority opinion where the Court observed that Volvo's discrimination was procompetitive. In Part III, I review the growing consensus in antitrust law that the fundamental goal of the antitrust statutes (other than the Robinson-Patman Act) is to promote consumer welfare. Today when most courts say that a practice furthers competition, they mean that it improves consumer welfare-specifically, the welfare of consumers in the relevant market. In Part IV, I use that interpretation of …
Patent Ships Sail An Antitrust Sea, Joseph Scott Miller
Patent Ships Sail An Antitrust Sea, Joseph Scott Miller
Seattle University Law Review
The deeper truths evoked by patent ships sailing an antitrust sea are three. First, free competition is the pervasive, baseline reality, the background norm; patent protection is the temporary, partial exception. Second, we grasp both patent and antitrust policy with a common science: economics. Third, although neither patent nor antitrust law doctrines are good tools for fixing fundamental problems in the other body of law, both bodies of law help us better understand the shortcomings of the other. I explore these ideas in turn, below.
Independent Ink At The Crossroads Of Antitrust And Intellectual Property Law: The Court's Holding Regarding Market Power In Cases Involving Patents And Implications In Cases Involving Copyrights, Leonard J. Feldman, Rima J. Alaily, Chad D. Farrell
Independent Ink At The Crossroads Of Antitrust And Intellectual Property Law: The Court's Holding Regarding Market Power In Cases Involving Patents And Implications In Cases Involving Copyrights, Leonard J. Feldman, Rima J. Alaily, Chad D. Farrell
Seattle University Law Review
By eliminating the market power presumption for patent holders, Independent Ink calls into question the presumption's continued validity for tying arrangements involving copyrights. While the Court's holding directly applies only to patents, we present three reasons why, after Independent Ink, the presumption can no longer be viable in antitrust lawsuits challenging a tying arrangement involving a copyrighted product. First, the Court's rationale for eliminating the presumption including citations to extensive academic writings, agency guidelines, and legislative amendments precludes the presumption's continued application in any other context. Second, copyrights are significantly less likely than patents to confer market power because …
Antitrust Issues In The Settlement Of Patent Disputes, Part Iii, Thomas B. Leary
Antitrust Issues In The Settlement Of Patent Disputes, Part Iii, Thomas B. Leary
Seattle University Law Review
Once again, I will address the issue of litigation settlements between companies that hold patents on pharmaceutical products (sometimes "pioneers") and would-be generic entrants ("generics") who challenge the validity of the patent and/or a claim of infringement. This discussion will focus on the Tamoxifen opinion, with passing reference to other decisions. Obviously, reasonable people can disagree on these issues, but I still believe the Commission's approach in Schering was correct.
Patent Ships Sail An Antitrust Sea, Joseph S. Miller
Patent Ships Sail An Antitrust Sea, Joseph S. Miller
Scholarly Works
This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel
ExpressO
Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the court applies …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
Panel I: Monsanto V. Scruggs: The Scope Of Downstream Licensing Restrictions, Mark R. Patterson, Richard B. Ulmer Jr., Peter Castensen, Jay P. Kesan
Panel I: Monsanto V. Scruggs: The Scope Of Downstream Licensing Restrictions, Mark R. Patterson, Richard B. Ulmer Jr., Peter Castensen, Jay P. Kesan
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.