Intellectual Property Law Commons^™

Here Come The Trade Secret Trolls, David S. Levine, Sharon K. Sandeen

Washington and Lee Law Review Online

Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior—using litigation as a means to extract settlement payments from unsuspecting defendants—to trade secret law through …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Intellectual Property And Gender: Reflections On Accomplishments And Methodology, Kara W. Swanson

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Promoting Innovation, Matthew Sag, Spencer Weber Waller

Faculty Articles

This Essay proceeds as follows. We briefly introduce the concept of creative destruction and its place in Schumpeter’s work in Part II. In Part III we explain why a truly Schumpeterian competition policy demands more than a laissez faire approach. We explain why the law must preserve opportunities and incentives for creative destruction at all stages of innovation and we review four key policy areas of antitrust law from this innovation-focused perspective: unilateral conduct cases (Part III.A), cases at the intersection of IP and antitrust (Part III.B), Sherman Act section 1 cases (Part III.C), and merger policy (Part III.D). In …

Identity Property: Protecting The New Ip In A Race-Relevant World, Philip Lee

Journal Articles

This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness' has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law-i.e., through a process of socio-legal construction-in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development of …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, David O. Taylor, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman

Faculty Works

While the accomplishments of the biotechnology industry have been substantial, recent technological advances promise to dramatically increase the power and utility of the discipline over the coming years. The term “synthetic biology” has been coined to describe the application of these powerful new tools to the engineering of synthetic genetic sequences and organisms. In essence, synthetic biology represents the next iteration in the ongoing evolution of biotechnology, and hopes run high that in time, the fruits of synthetic biology will dwarf the past successes of conventional biotechnology. There is, however, some concern that the current patent-centric approach to Intellectual Property …

Kamil Kubik: The Artist And Copyright Observed, Elizabeth Townsend Gard, Yvette Joy Liebesman

All Faculty Scholarship

For over 60 years — from the time he fled his native Czechoslovakia in 1948 until his death in August 2011 — Kamil Kubik created amazing oil paintings and pastels. Many of his works were also printed as lithographs and serigraphs, for sale at more affordable prices than the four-to-five figures that he received for the originals. He was not dependent on the sale of these prints, which was a good thing — most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions.

Copyright law is the key law that protects the artistic …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu

Faculty Scholarship

As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.

This article begins by providing a brief discussion of the many different …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …

Aereo: Cutting The Cord Or Splitting The Circuit?, Julie Borna

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Learning From Copyright's Failure To Build Its Future, Ken Burleson

Indiana Law Journal

Since file sharing emerged in the late 1990s, copyright infringement has been widespread and virtually impervious to legal sanctions. Despite the best efforts of industry representatives and the lawmakers acting at their behest, attempts to scare and shame copyright infringers into compliance with the law have fallen flat. Part I of this Note discusses the ongoing conflict between modern copyright law and socially acceptable behavior, specifically copyright infringement through digital means. Part II explores the various attempts, and subsequent failures, to curb infringement through deterrence measures. Part III explains why deterrence has been ineffective by exploring psychological models of law-abiding …

Copyrighting The "Useful Art" Of Couture: Expanding Intellectual Property Protection For Fashion Designs, M. C. Miller

William & Mary Law Review

No abstract provided.

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan M. Carpenter, Steven Hetcher

Law Faculty Scholarship

This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

Design Law In The United States As Compared To The European Community Design System: What Do We Need To Fix?, Tiffany Mahmood

Fordham Intellectual Property, Media and Entertainment Law Journal

Now in their tenth year, European community designs were created to enhance harmonization in design protection across the Member States of the European Union (“EU”). The United States (“US”), in contrast, has only once expanded its protection for designs during that time, namely for vessel designs. Pushes have been made for further sui generis protection for Fashion law, but it is unclear why the US has not adopted a system similar to that of Europe, particularly taking into consideration the general uniformity between the two regions’ systems in other intellectual property areas. This Note looks to answer that question by …

The Anti-Economy Of Fashion; An Openwork Approach To Intellectual Property Protection, Amy L. Landers

Fordham Intellectual Property, Media and Entertainment Law Journal

Fashion’s cultural connections provide the groundwork for a theory to resolve the critical questions of protection for works that draw strongly on exogenous inputs. This article proposes that narrow protection for fashion is both economically justified, theoretically sound, and beneficial to the field because it facilitates spillovers in a manner that allows others to create the endless variations that are the lifeblood of this vibrant industry. Such protection relies on a theory of openworks, which applies to designs that have a high level of input from outside of the creator’s realm of activity. In fashion, inspiration that derives from the …

Borrowed Fiction And The Rightful Copyright Position, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

Works of “borrowed fiction” — unauthorized sequels or retellings of literary works — have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the “original” author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the …

The Eureka Myth: Creators, Innovators, And Everyday Intellectual Property, Jessica Silbey

Books

Are innovation and creativity helped or hindered by our intellectual property laws? In the two hundred plus years since the Constitution enshrined protections for those who create and innovate, we're still debating the merits of IP laws and whether or not they actually work as intended. Artists, scientists, businesses, and the lawyers who serve them, as well as the Americans who benefit from their creations all still wonder: what facilitates innovation and creativity in our digital age? And what role, if any, do our intellectual property laws play in the growth of innovation and creativity in the United States?

Incentivizing …

Private Enforcement Of Trips By Applying The Eu Law Principles Of Direct Effect And State Liability, Saud Aldawsari

Richmond Journal of Global Law & Business

No abstract provided.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Maryland Law Review

No abstract provided.

Informal–Formal Sector Interactions In Automotive Engineering, Kampala, Dick Kawooya

Faculty Publications

This chapter provides findings from a Ugandan case study that examined innovation transfers between informal-sector automotive artisans and formally employed researchers at Makerere University’s College of Engineering, Design, Art and Technology (CEDAT). Th e primary site studied was CEDAT’s Gatsby Garage, an automotive workshop where it was found that the informal-sector artisans were central to innovative processes but were at the same time driven more by sharing impulses than by concern for the intellectual property (IP) implications of their work. Based on these findings, it is argued that Ugandan policy-makers need to seek policy tools to support innovation transfers between …

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

An Empirical Study Of Certain Settlement-Related Motions For Vacatur In Patent Cases, Jeremy Bock

Indiana Law Journal

When parties jointly move to vacate otherwise proper rulings as part of a settlement agreement, district courts often oblige. While the general practice of vacating rulings to facilitate settlement has been criticized in the academic literature as depriving the public of the benefit of judicial precedents, there are hardly any empirical studies on the prevalence of this practice and its effects, particularly at the district court level where the efficiencies arising from settlement—and the resulting pressure on the court to grant vacatur—are much greater compared to the appellate level. This Article endeavors to add an empirical study to the literature …

Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg

Fordham Intellectual Property, Media and Entertainment Law Journal

In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), the United States Supreme Court held that, in order for a product design to be protectable under § 43(a) of the Lanham Act, the product design must first acquire a secondary meaning. Writing for the Court, Justice Scalia, reasoned that consumers, as a rule, do not expect a product’s design to serve as an indicator of source. The Court stated that product designs, like colors, do not ordinarily operate as source indicators, and that is why the Court established its rule that a product design must acquire a …

The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey

Fordham Intellectual Property, Media and Entertainment Law Journal

Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is …

A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark P. Mckenna

Journal Articles

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

The Relationship Between Foundations And Principles In Ip Law, Robert P. Merges

San Diego Law Review

In my book Justifying Intellectual Property (JIP), I wrote about what I call the “foundations” of the field of intellectual property (IP) law. I tried to distinguish between a foundational level of discourse and another level, the level of basic principles. In the San Diego conference at which my book was discussed—and in several other settings as well—the most frequent and persistent line of questioning about my book centered on the relationship between these two levels. That is what this brief Article is about.