Intellectual Property Law Commons^™

Establishing Appropriate Best Practices In Intellectual Property Management And Technology Transfer In The United Arab Emirates: Building Human Capital, Global Networks And Institutional Infrastructure To Drive Sustainable Knowledge-Based, Innovation-Driven Development, Stanley Kowalski

Law Faculty Scholarship

Best practices (BP) are integral to national and international IP law, practice, and management. For the United Arab Emirates (UAE) to build, foster, and sustain globally-networked knowledge-based, innovation-driven, economic development in the 21st century, a suite of internationally-standardized BP in intellectual property (IP) management, technology transfer and information analysis will be necessary. For the UAE, and the other GCC states, appropriate and applicable BP will be critical to diversify from commodity over-dependence (petroleum) towards nationally, regionally and globally interconnected innovation ecosystems. Therefore, strategically building human capital, institutions, institutional infrastructure and global networks which will be required for UAE to leapfrog …

The User Rights Database: Measuring The Impact Of Copyright Balance, Sean Flynn, Michael Palmedo

Working Papers

International and domestic copyright law reform around the world is increasingly focused on how copyright user rights should be expanded to promote maximum creativity and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We developed such a tool, which we call the “User Rights Database.” …

Predictive Analytics, Daryl Lim

Faculty Scholarly Works

“Predictive Analytics” blends the latest research in behavioral economics with artificial intelligence to address one of the most important legal questions at the heart of intellectual property law and antitrust law – how do courts and agencies make judgments about innovation and competition policies? How can they better predict the consequences of intervention or non-intervention?

The premise of this Article is that we should not continue to build doctrine at the IP-antitrust on theoretical neoclassical assumptions alone but also on the reality of markets using all that AI has to offer us. Behavioral economics and AI do not replace traditional …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Trends In Fashion Law: Striking The Proper Balance Between Protecting The Art Form And Sustaining A Thriving Online Market, Elisabeth Johnson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Cross-Subsidies: Government's Hidden Pocketbook, John Brooks, Brian Galle, Brendan S. Maher

Faculty Scholarship

Governments can use regulation to pay for public goods out of the pockets of consumers, rather than taxpayers. For example, the Affordable Care Act underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross-subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.

Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent, and to fit better with …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence standard, …

Pornography And Gender Inequality—Using Copyright Law As A Step Forward, Kayla Louis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Faculty Articles and Other Publications

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …

Intellectual Property Issues For Startups Participating In Entrepreneurship Support Programs In Wisconsin, Nathaniel S. Hammons

Marquette Intellectual Property Law Review

Wisconsin is not known as a bastion of startup activity. Yet the startup scene has changed significantly since the turn of the century, and the pace of change has been accelerating. In 2001, only eight early-stage Wisconsin companies raised capital, totaling less than $53 million. In 2016, by way of comparison, 137 early-stage Wisconsin companies raised more than $276 million in investment capital. As someone familiar with the state might surmise, more than half of the deals closed in 2016 were in the Madison area, home to the University of Wisconsin-Madison and large employers in information technology, healthcare, and life …

The Industrial Internet Of Things: Risks, Liabilities, And Emerging Legal Issues, Mauricio Paez, Kerianne Tobitsch

NYLS Law Review

No abstract provided.

Cancer's Ip, Jacob S. Sherkow

Articles & Chapters

The state of publicly funded science is in peril. Instead, new biomedical research efforts — in particular, the recent funding of a “Cancer Moonshot” — have focused on employing public-private partnerships, joint ventures between private industry and public agencies, as being more politically palatable. Yet, public-private partnerships like the Cancer Moonshot center on the production of public goods: scientific information. Using private incentives in this context presents numerous puzzles for both intellectual property law and information policy. This Article examines whether—and to what extent — intellectual property and information policy can be appropriately tailored to the goals of public-private partnerships. …

Intellectual Property Law Gets Experienced, Victoria Phillips

Scholarly Articles in Law Reviews & Journals

Introduction: A decade ago, in Clinical Legal Education and the Public Interest in Intellectual Property Law, I described with my faculty colleagues our motivations for launching a public interest intellectual property law clinic at the American University Washington College of Law. That article introduced our goals and framework for a pioneering clinic framed around a variety of live-client student representations performed under close faculty supervision, weekly case rounds focusing on issues experienced directly by the students in their representations, and a seminar built around a year-long lawyering simulation addressing the public interest dimensions of intellectual property. In that article, we …

Ip Preparedness For Outbreak Diseases, Ana Santos Rutschman

All Faculty Scholarship

Outbreaks of infectious diseases will worsen, as illustrated by the recent back-to-back Ebola and Zika epidemics. The development of innovative drugs, especially in the form of vaccines, is key to minimizing future outbreaks, yet current intellectual property (IP) regimes are ineffective in supporting this goal.

IP scholarship has not adequately addressed the role of IP in the development of vaccines for outbreak diseases. This Article fills that void. Through case studies on the recent Ebola and Zika outbreaks, it provides the first descriptive analysis of the role of IP from the pre- to the post-outbreak stages, specifically identifying IP inefficiencies. …

Clarity In Remedies For Patent Cases, Ryan T. Holte

Akron Law Faculty Publications

This article examines the state of patent remedies following the Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C. (2006), which altered the standard for granting injunctions in patent infringement cases. The author argues that over a decade of inconsistent application and discussion regarding the eBay precedent has led to confusion in patent remedies. The article provides:A historical overview of the eBay case and the procedural factors contributing to the current state of uncertainty. An empirical analysis highlighting differences in injunction decisions between district courts and the Federal Circuit, noting the latter's continued inclination toward granting injunctions.A discussion on the …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee

IP Theory

In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to elevate the status …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

Asean And Intellectual Property: Will A Complicated History Lead To A Certain Future?, Peter N. Fowler, Teerin Charoenpot, Cheepchanok Chernkwanma

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Domino Effect: How Inadequate Intellectual Property Rights In The Fashion Industry Affect Global Sustainability, Cassandra Elrod

Indiana Journal of Global Legal Studies

This note discusses an unexplored problem at the nexus of fashion and intellectual property law: how "fast fashion" leads to unsustainability of global resources and human rights issues pertaining to overseas manufacturing facilities. This unnecessary chain of events could be avoided if fashion designers were granted more substantial intellectual property rights rather than an overall lack of protection. Instead of turning a blind eye to the consequences of consumer demand and "fast fashion," Congress needs to address these issues head on through legislation that mirrors some of the copyright protections afforded fashion designers overseas

A Picture's Worth: The Future Of Copyright Protection Of User-Generated Images On Social Media, Elizabeth Tao

Indiana Journal of Global Legal Studies

In the current digital age, the internet is teeming with personal websites and social media posts. As more people around the world are becoming and staying connected to the internet, more stories and photos are sharing over social networking sites each second. Social media presents a ubiquitous platform to share one's life with others, but this accessibility comes at a price. This Note examines the history and present state of copyright law, within the framework of photography, to highlight the gaps within these laws as applied to personal works of art, like personal photographs, posted to social media sites. Social …

Consent Decrees In The Streaming Era: Digital Withdrawal, Fractional Licensing, And § 114(I), Steven J. Gagliano

The Journal of Business, Entrepreneurship & the Law

Clear disagreement exists about how best to reconcile the copyright protections afforded to songwriters with the antitrust considerations protecting consumers. Songwriter public performance royalty collections account for over $2 billion in annual U.S. revenue, roughly 90% of which is collected by the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). ASCAP and BMI are performance rights organizations (PROs) regulated by seventy-five-year-old consent decrees. After the Second Circuit determined that these consent decrees prohibit music publishers from selectively withdrawing their new media rights from ASCAP and BMI to directly negotiating with new media services, the PROs …

Free Speech Comes To Trademark Law, Christine Farley

Popular Media

No abstract provided.

"The Engine Of Free Expression": The Political Economy Of Copyright In The Colonial British Atlantic And Early National United States, Nora Slonimsky

Dissertations, Theses, and Capstone Projects

In 1985, the Supreme Court of the United States concluded that copyright was included in the Constitution in order to serve as the “engine of free expression.” By providing economic incentive to drive artistic and scientific innovation, the nation received essential information and other tools of learning necessary to make sound political decisions. However, transnational copyright disputes, then and now, frequently resulted in complex and often contradictory understandings of free expression. The formation of copyright in America was thus a far more complex story, and it is that story that forms the basis of this project.

Amidst the many moving …

Who Will Protect The Consumers Of Trademarked Goods?, James Astrachan

University of Baltimore Law Review

Federal and state law recognizes multiple forms of intellectual property, including patents,1 copyrights,2 trademarks,3 and trade secrets.4 Alleged violations of patents and copyrights are required by statute to be litigated in the federal courts.5 Trademark rights can arise under the Federal Lanham Act6 or state law.7 Trademark infringement can be litigated in state or federal courts.8 Trade secrets arising under state statutes are litigated in state courts unless diversity jurisdiction exists and is pled.9

Infringement of intellectual property in the case of patents arises when a patented invention is used, manufactured or imported into the United States without authority of …

Uncovering The Confusing Influence Experts Have On Music Copyright Cases, Arata-Enrique Kaku

Honors Projects

Contemporary copyright decisions by Federal Courts perplex composers; am I the creative composer, or am I an infringer on someone else’s intellectual property? By forming a temporary monopoly to monetize new content, copyright protection incentivizes artists to be fruitful. In a creative field like music, an overly broad definition of copyrightable expression can lead to a “chilling effect” on creativity. This chilling effect is exacerbated by the great latitude given expert witnesses to claim infringement based on broad classifications of expressions. My paper addresses the question: To what extent should expert witnesses be probative when they extend ownership rights beyond …

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …