Intellectual Property Law Commons^™

The Illegitimacy Of Trademark Incontestability, Kenneth L. Port

Faculty Scholarship

The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple …

A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon

Faculty Scholarship

This Article argues that a properly conceived natural-rights theory of intellectual property would provide significant protection for free speech interests. This is more than just an academic exercise. Judges have failed to use the First Amendment to provide extensive protection for free expression in intellectual property cases, in part because they mistakenly find a warrant for strong "authors' rights" in a philosophy of natural law. Natural rights theory, however, is necessarily concerned with the rights of the public as well as with those whose labors create intellectual products. When the limitations in natural law's premises are taken seriously, natural rights …

Expanding The Use Of Hypothetical Analysis When Evaluating Patent Infringement Under The Doctrine Of Equivalents, Brian E. Lewis

Seattle University Law Review

Accordingly, the purpose of this Comment is twofold: first, to bring the reader up-to-date on the doctrine of equivalents, and second, to suggest an improvement on the doctrine's application that is consistent with recent developments. This Comment proposes that the hypothetical technique should be expanded to evaluate more than prior art alone. Before exploring how this new use of the hypothetical would work, however, it is necessary to explain the doctrine of equivalents' history, the factors that affect the range of equivalents, and the methods to determine and apply equivalents.

Preface: Symposium On Intellectual Property Law Theory, Wendy J. Gordon

Faculty Scholarship

For primary contributors to this symposium we have sought out people whose thoughts on intellectual property are not well known to readers of the standard law reviews. We are very gratified by the results. Of our three philosopher contributors, none has published much explicitly discussing intellectual property before, though the work of each of them is highly relevant to the topic; our economist, who publishes most often in philosophic, economic and communications journals, here brings his various perspectives to bear; our practitioner contributor proves that the most esoteric of academic topics - postmodern literary theory - has relevance to everyday …

Letter From Professor Timothy J. Brennan, Timothy J. Brennan

Scholarship Chronologically

Dear Wendy,

Thanks for sending me the recent pair of articles. I just had a chance to read them today while I'm getting my furnace and AC replaced. I enjoyed them very much, both for the chance to think about copyright issues and to read yet again your creative and insightful approach to them.

The most intriguing thing about the Dayton piece was the asymmetric mar- ket failure idea. (I'll come back to the prisoners' dilemma in connection with the LCP paper!) Your point that justifying copyright requires the belief that intellectual property markets won't work without copyright and that …

Letter To Ms. Sheddy Murphy On Paper For Cd-Rom Symposium, Wendy J. Gordon

Scholarship Chronologically

As you know, I am revising the piece primarily by combining it with my oral remarks. Thus I am sending you the original version of the article as you sent it to me, with corrections inked in, and I am also sending several separate typed pages (adapted from the oral remarks), with indications where they fit into the piece. The new pages have several footnotes, but in most cases the footnotes refer to sources cited in the earlier version. I can also send you photocopies of any material cited, if you wish. I hope this is not too burdensome. The …

Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon

Faculty Scholarship

When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.

When should lawmakers place copyright law or other IP law among the prime options to consider?

Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …

Cd-Rom Symposium Transcript Two - 1992, Wendy J. Gordon

Scholarship Chronologically

MR. METALITZ: I think the point there is that amputation of authorship is really kind of an artifact of the registration process. You wouldn't be that concerned.

On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon

Faculty Scholarship

Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Handwritten Notes On Of Harms And Benefits: Torts, Restitution, And Intellectual Property - 1992, Wendy J. Gordon

Scholarship Chronologically

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land. intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

The Viability Of The Copyright Misuse Defense, David Scher

Fordham Urban Law Journal

Under the equitable doctrine of "unclean hands," courts will deny an otherwise meritorious claim where the claimant has acted so improperly that the need to punish the claimant’s wrongful behavior outweighs the need to punish the defendant’s allegedly unlawful conduct. The principle underlying the doctrine is that equity presumes harm when an unclean plaintiff obtains relief; consequently, one who desires justice must come into court with a “clean slate.” The theory of intellectual property misuse, which stems from the “unclean hands” doctrine, prevents a plaintiff from enforcing an intellectual property right if that plaintiff is guilty of misconduct with respect …

The Patentability And Patent Term Extension Of Lifesaving Drugs: A Deadly Mistake, Jonathan L. Mezrich

Journal of Law and Health

The pharmaceutical business is dominated largely by two types of entities: large, research-intensive corporations, and the smaller "generic" drug "knock-off" artists. because the former organizations have to put so much of their budget into research and development (R&D), a form of investment which is often akin to pouring money into a hole, the 17-year exclusive monopoly of a patient is often the only way such a company can remain profitable. However, because of a concern for public safety, all substances prepared for human consumption must be put through extensive testing by the FDA. This testing could take a long period …

Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon

Faculty Scholarship

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

The Effect Of Lilly V. Medtronics On The Scope Of 35 Usc 271(E)(1): The Patent Infringement Exemption - Broad Or Narrow, Ajay S. Pathak

Journal of Law and Health

This article undertakes to examine, critically, the case history, legislative history, and the construction of sections 101, 201, and 202 of the Patent Term Restoration Act of 1984 in an effort to analyze the Supreme Court's recent decision in Lilly v. Medtronics and to discern how the scope of section 271(e)(1) is likely to be treated in future cases in light of that recent Supreme Court decision.

Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller

Faculty Scholarship

Hungary is in the midst of a fundamental transformation toward a market economy. Although Hungary has long been in the forefront of efforts to reform socialism itself, after 1989 the goals of reform moved from market socialism toward capitalism, as the old Communist regime lost power and the idea of widespread private ownership gained acceptance. The legal framework – the "rules of the game – is now being geared toward encouraging, protecting, and rewarding entrepreneurs in the private sector.

This Article describes the evolving legal framework in Hungary in several areas: constitutional, real property, intellectual property, company, foreign investment, contract, …

Case Comment, John C. Herman

Vanderbilt Journal of Transnational Law

Section 337 of the recently amended Tariff Act of 1930 permits United States patent owners to bar from importation goods that infringe upon their patents. In Amgen, Inc. v. United States International Trade Commission, the Federal Circuit refused to grant relief to the patent owner because it had no claim on either the final product imported or the process to create the product. The alleged infringer, however, had to use the patented product to create the final product, which, if done in the United States, would infringe the patent.

This Comment argues for an extension of section 337 to cover …

The Caribbean Basin Initiative: A Proposal To Attract Corporate Investment And Technological Infusion Via An Inter-American System Of Cooperative Protection For Intellectual Property, John Cyril Malloy Iii

University of Miami Inter-American Law Review

No abstract provided.

State Trademark And Unfair Competition Law By The United States Trademark Association , Jeffrey E. Jacobson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Protecting United States Intellectual Property Abroad: Toward A New Multilateralism, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

Combatting Piracy Of Intellectual Property In International Markets: A Proposed Modification Of The Special 301 Action, Theodore H. Davis

Vanderbilt Journal of Transnational Law

Increasing losses attributable to the piracy of United States intellectual property rights in international trade have forced domestic policymakers to reexamine how best to protect these rights. This Article examines the United States most recent bilateral strategy to protect intellectual property, the Special 301 action, which creates a virtually mandatory United States Trade Representative (USTR) investigation into states that have inadequate intellectual property laws or that deny fair market access to United States citizens who rely on intellectual property protection. Part One of this Article discusses the historic interaction between United States intellectual property protection and trade measures. Part Two …

The Legal Protection Of Ideas, Grant Hammond

Osgoode Hall Law Journal

The received wisdom is that an idea as such is not legally protected. But now courts are embarking on a course which, at least in some respects, embraces the proposition that ideas will sometimes be protected. This essay suggests that these contemporary developments in the common law world should be regarded with disquiet. Courts are sanctioning the commercial exploitation of ideas in the face of an apparent desire of human beings to reduce every aspect of themselves to divisible, saleable commodities. Short term commercial gain is preferred to the timeless importance of ideas in the seamless web of humanity. This …

Note On Deserving The Results Of Labor - 1990, Wendy J. Gordon

Scholarship Chronologically

Munzer's formulation seems to talk in the end about largely consensual arrangements, like working for wages.

Note On Causation And Limited Duration Of Intellectual Property; Also Patent Standards - 1990, Wendy J. Gordon

Scholarship Chronologically

Another causation problem is this: "But for" causation is only one type. It has its own problems. But there are other kinds of cause. In tort law these other kinds of cause are lumped together under the rubric "proximate cause", and the difficulties of "proximate cause" doctrine illustrate some of the difficulties.

Notes On Misc Re Paper: Property Preemption - 1990, Wendy J. Gordon

Scholarship Chronologically

Sears/Compco said anything not protected by patent copyright etc is not subject to state anti-copying protection. Goldstein says Sears/Compco didn't mean that exactly- rather, states can't control copying where fed statutory policies would be in conflict with the state protection. Section 102b and generations of copyright cases say ideas, systems, etc., are not copyrightable. That wd seem to suggest that even under Goldstein, ideas, etc can't be protected against state law.[1] However, a 1 iteral reading of 301 might suggest Cong decided there should be no preE of such state law protection of ideas.

Letter From Louis Michael Seidman, Louis M. Seidman

Scholarship Chronologically

Dear Wendy:

Thanks for sending me your piece on intellectual property and the restitutionary impulse. As always with your work, I found it fascinating. I'm happy to give you my comments, but I doubt that they will be very useful to you. This is an area I know nothing about, so many of my problems reflect my lack of understanding, rather than any defects in your arguments. With that caveat, and for what it is worth, here are some reactions (many of which, as you will see, are quite trivial):

The Truth May Not Set You Free, Robert M. O'Neil

Washington and Lee Law Review

No abstract provided.

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

Scholarship Chronologically

The Treatise suggests that the two major strains in copyright are the economic or instrumental perspective, and the authors' rights perspective. This dual perspective parallels the configuration in property and tort law as a whole, where quandaries such as the suppression problem are sometimes analyzed in terms of whether the individual holding an entitlement is a "steward" entrusted with the resource solely for sake of the social good that is likely to result from his or her productive use of it, or a "sovereign" to be left unregulated in managing the resource.

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

Scholarship Chronologically

What is the S ct s notion of public domain? Does dissemination play the same role I thinK it should? Here s a looK at patent pol icy. Basically, I think the following shows that the Supreme Court envisages that there s a separate policy which says that things once made public should stay public. Now d tie that to reliance & changes of position. The court doesn t think it through very well; they may have power in mind, or vesting, or just precedent. It s unclear. But it s useful for my purposes that the Court opinion suggests …

Berne-Ing The Soviet Copyright Codes: Will The U.S.S.R. Alter Its Copyright Laws To Comply With The Berne Convention?, William Scott Goldman

Penn State International Law Review (1982 - 2011)

What changes need to be made in the Soviet copyright codes in order to bring them into compliance with the provisions of Berne? And is it likely that these changes will be accomplished in the near future? This comment will attempt to answer these questions. While these issues have already been addressed in regard to the United States, nothing similar has yet been attempted for the Soviet Union. In light of the U.S.S.R.'s announcement of its intent to accede to the Berne Convention, this analysis is now more timely than ever.