Intellectual Property Law Commons^™

Patents And Technology Evolution: Altering Innovations And Innovators Via Patent Influences, Richard Gruner

Georgia Journal of Law & Technology

Technologies improve primarily through evolutionary change not rational optimization. New technologies emerge as attempts to solve practical problems, the technologies are tested in marketplaces to determine if they are superior in cost and function to alternatives, and those that fare well in the testing gain widespread adoption.  Widely adopted technologies, and their problems, form the basis for the next round of technology improvements and evolution.  Through these steps, evolutionary processes lacking rational direction can generate changing technologies matched to the desires and problems of present society.

As they operate to advance diverse technologies, evolutionary processes governing technology change are subject …

The Expanding Patent Document: Fewer Claims, More Words, And The Drivers Of Growth, Dennis D. Crouch

Georgia Journal of Law & Technology

Patent specifications have nearly quadrupled in length over the past four decades, rising from approximately 3,500 words in the early 1980s to over 13,000 words by 2025. At the same time, the average number of claims per patent has declined since peaking in 2005. Using the population of 7.6 million published patent applications from 2005 through early 2025, this Article advances a supply-side explanation for the persistent growth in specification length. The divergence between expanding specifications and contracting claims reflects a structural asymmetry in the USPTO fee schedule: excess claim fees impose a per-unit cost that visibly constrains claim counts …

Patentability Of Ai-Assisted Inventions: Guidance, Case Law, And A Roadmap Forward, Zhipeng Zhu

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Molecules And Monoclonals: The Two-Tiered Patent System, Candi L. Lasarge Ph.D.

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Mark Of Confusion: Untangling The Circuit Split In Trademark Infringement Jurisprudence, Amilcar Torres

University of Cincinnati Law Review

No abstract provided.

No Patent Attorney In Their Right Mind: How Jepson Claims Clarify Subject Matter Eligibility Post-Mayo, Jared M. Brown

Georgia Journal of Law & Technology

Patent practitioners have gradually shelved Jepson claims for four decades. In those four decades, Supreme Court patent subject matter eligibility jurisprudence has taken a roller-coaster ride from an ancient point-of-novelty approach through the days of Diamond v. Diehr and back to a modernized arguably point-of-novelty-focused approach again in Mayo and Alice. In the absence of congressional action, the Federal Circuit has been left to deal with the aftermath. The inventive landscape—particularly with regard to biotech and software—is shifting fast, and our patent scheme is struggling to keep up.

In the case of software inventions, the Federal Circuit has largely …

Fluid Agency In Ai Systems: A Case For Functional Equivalence In Copyright, Patent, And Tort, Anirban Mukherjee, Hannah H. Chang

Washington Journal of Law, Technology & Arts

Modern artificial intelligence (AI) systems lack human-like consciousness or culpability, yet they exhibit fluid agency: behavior that is (i) stochastic (probabilistic and path-dependent), (ii) dynamic (co-evolving with user interaction), and (iii) adaptive (able to reorient across contexts). Fluid agency generates valuable outputs but collapses attribution, irreducibly entangling human and machine inputs. This fundamental unmappability fractures doctrines that assume traceable provenance—authorship, inventorship, and liability—yielding ownership gaps and moral “crumple zones.”

This Article argues that only functional equivalence stabilizes doctrine. Where provenance is indeterminate, legal frameworks must treat human and AI contributions as equivalent for allocating rights and responsibility—not as a claim …

The Apathy Economy: Patents, Advertising, And Consumer Indifference, Gavin Milczarek-Desai, Derek E. Bambauer

UF Law Faculty Publications

Patents function as signals as well as rights to exclude. They inform competitors, investors, employees, and consumers about the invention and its owner. How this information affects consumers is not well understood. Existing studies disagree about how advertising a product or service as patented, or patent pending, affects the price consumers will pay. This Article offers the first major empirical study of that question and finds that consumers behave with surprising rationality: they will not pay any price premium for a patented product. A product’s patent status conveys little information about whether it is superior to competing offerings. The results …

Patenting Ai Discoveries In Life Sciences: Overcoming Eligibility, Disclosure, And Inventorship Challenges, Dhohyung Kim, Ryan P. Hiler

IP Theory

The pharmaceutical and biotechnology industries face transformative opportunities through artificial intelligence and machine learning integration. However, these technological advances create distinct patent law complications that traditional drug development does not encounter. This article analyzes three interconnected obstacles: establishing eligible subject matter under 35 U.S.C. § 101, meeting disclosure standards under § 112(a), and determining proper inventorship when AI systems contribute substantially to claimed inventions. Drawing from recent USPTO guidance and Federal Circuit precedent, this analysis offers evidence-based strategies for patent practitioners, research scientists, and business leaders seeking robust intellectual property protection for AI-integrated pharmaceutical innovations.

Fluid Agency In Ai Systems: A Case For Functional Equivalence In Copyright, Patent, And Tort, Anirban Mukherjee, Hannah H. Chang

Research Collection Lee Kong Chian School Of Business

Modern Artificial Intelligence (AI) systems exhibit fluid agency in multi-step workflows: lacking human-like consciousness or culpability, yet they display behavior that is (i) stochastic (probabilistic and path‑dependent), (ii) dynamic (co‑evolving with user interaction), and (iii) adaptive (able to reorient across contexts). These properties generate valuable outputs but collapse attribution, irreducibly entangling human and machine inputs. Doctrines that assume traceable provenance—authorship, inventorship, and liability—fracture under this unmappability, yielding ownership gaps and moral “crumple zones.”This Article argues that only functional equivalence stabilizes doctrine under unmappability: Where provenance is indeterminate, legal frameworks should treat human and AI contributions as equivalent for allocating rights …

Function Over Form: Why Wipo's Procedural Treaties Are Not Enough, Cassidy Serger

University of Cincinnati Law Review

No abstract provided.

You Can’T Handle The Obvious: Lkq And Testing For Nonobviousness In Design Patents, Frank Easterlin

Georgia Journal of Law & Technology

This Note traces the change from the rigid Rosen-Durling test for obviousness in design patents, to the Graham analysis in light of KSR v. Teleflex. The history of obviousness inquiries supported a more flexible approach and thus made Rosen-Durling unsupportable as anomalous. However, in abandoning a functional, if stiff, test for obviousness, the Federal Circuit both clarifies and clutters the law around obviousness. This Note follows that change, makes sense of what it can, and humorously criticizes the ambiguities and circularity of the court’s opinion. Ultimately, the new test opens up design patents to a wider array of attacks. This …

Trademark Rights In Patented Subject Matter And The Patent Policy Of Public Dedication, Maine Law Review

Maine Law Review

This Comment examines the allowance of federal trademark registration for devices that may also qualify for patent protection. A conflict between trademark recognition for patentable devices and basic patent policy inheres in the Patent Act and Supreme Court decisional law. The availability of trademark registration for patentable subject matter may needlessly derogate the public right to benefit from the free exploitation of new ideas.

Brief Of 11 Narcolepsy Patients, Public Interest Orgnizations, Medical Professionals, And Professors Of Law As Amici Curiae In Support Of Defendants-Appellees, Charles Duan

Amicus Briefs & Court Filings

Amici curiae are patients, organizations, medical professionals, and legal scholars who share a common interest in advancing the law toward better patient health and welfare. New, clinically superior drug products for treating rare diseases and conditions tremendously benefit patients and society, because those products offer choice, competition, and improved patient care. In filing this brief, amici hope to make this Court aware of the broad real-world implications of this case, both for narcolepsy patients and for the public interest generally. Generation Patient is a nonprofit organization that represents young adults with chronic and rare conditions across the United States. Created …

Brief Of 12 Narcolepsy Patients, Public Interest Organizations, Medical Professionals, And Professors Of Law And Medicine As Amici Curiae In Support Of Defendants-Appellees (Amended To Add Further Signatories), Charles Duan

Amicus Briefs & Court Filings

A prior copy of this brief was filed, inadvertently omitting one signatory. This brief has accordingly been amended to correct the error, reflected in the Certificate as to parties and the Appendix.

Brief Of 76 Scholars Of Law, Business, Economics, And Medicine As Amici Curiae, Charles Duan

Amicus Briefs & Court Filings

No abstract provided.

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Revisiting Patent Linkage, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Alfred Engelberg’s article of a quarter-century ago, Special Patent Provisions for Pharmaceuticals: Have They Outlived Their Usefulness?, raised a provocative question that retains currency today. The special provisions that Hatch-Waxman established, and Engelberg addressed, have come to be known as patent linkage. Following the principle of linkage, the Food and Drug Administration (FDA) cannot approve generic drugs for marketing if they would infringe a patent.

Hatch-Waxman’s complex patent provisions aspire towards multiple salutary purposes, including encouraging the prompt availability of generic drugs, improving public notice of pharmaceutical patents, and accelerating dispute resolution proceedings. Congress also attempted to ameliorate perceived …

Perception Pending: What Do Patents Signal To Consumers?, Alexander Billy, Neel Sukhatme

Articles

Patent law encourages inventors to label their products as “patented,” to mark their legal status and potentially secure monetary damages from infringing competitors. We examine whether such labels might have a separate and direct impact on consumers, by affecting how they view patented products and influencing what they purchase. We develop and conduct two experiments to isolate the impact of patent status on consumer behavior. In an online randomized experiment, we demonstrate how increasing the salience of patent status heightens consumers' beliefs that products are innovative and well made. We also reveal consumers' surprisingly sophisticated understanding of the patenting process …

Certainly Uncertain: An Analysis Of The Patent Eligibility Restoration Act Of 2023, Charles Duan

American University Business Law Review

Patentable subject matter eligibility has been a topic of major policy debate over many years, culminating in the recent introduction of a bill that would entirely overhaul current law. This article reviews the proposed legislation in view of its historical context, the purported need to reduce uncertainty, and the likely effects of the bill. Based on this analysis, the article concludes that the legislation is unnecessary, ill conceived, and likely to be harmful to scientific research, a variety of industries, and the public good.

Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan

Amicus Briefs & Court Filings

Amici are law professors and scholars who focus their scholarship and teaching on intellectual property law, property law, regulatory law, and health law.2 They write to address the plaintiff’s, Novo Nordisk Inc., et al. (Novo), overarching contention that the Medicare drug price negotiation program constitutes an unconstitutional price control. Amici submit this brief to provide the Court with the historical and legal background regarding the constitutionality of government price negotiations and price regulations. The amici explain how Courts have historically ruled on these questions, as well as the far-reaching consequences that a ruling in Novo’s favor would have on the …

Who Invented It? Streamlining Determination Of Patent Inventorship, Henry H. Perritt, Jr.

University of Miami Law Review

Disputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark …

Brief Of 15 Scholars Of Law And Medicine As Amici Curiae In Support Of The Petition For Rehearing En Banc, Charles Duan

Amicus Briefs & Court Filings

The panel decision announces an over-expansive, ill-defned doctrine of inducement, in which well-pled allegations may be based on nothing more than ordinary marketing materials and mandatory labeling--even when those materials never recite or describe the claimed invention. This unprecedented and erroneous expansion of inducement liability leaves the law uncertain. It is now unclear, among other things, what statements a generic frm may make about its own product's equivalence and how much of the generic product's labeling information must be revised--assuming that such revisions are even regulatorily allowed--in order to avoid the risk of an inducement lawsuit.

Hard Truths About Soft Ip, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators …

A Patent Pool-Party: Changing The Current Use Of Patent Pools For Treatment Innovation In Public Health Emergencies, Emma Whitmore

Georgia Journal of Law & Technology

Intellectual property laws have been in tension with the creation of innovation for the public good since their inception. Many intellectual property concepts such as patents create an opportunity for ownership of invention, which in the general market and in typical life circumstances, has the power to aid innovation and work successfully in the market. However, in times of emergency, intellectual property can create a roadblock that costs human life. As highlighted in the current COVID-19 pandemic, intellectual property laws have the power to act as a hinderance to the innovation of lifesaving treatments by not allowing information to be …

The Brain Is In Your Court: Evaluating Intellectual Property Infringement Audience Through The Lens Of Neuroscience, Madyson Kent

Washington and Lee Law Review

To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.

Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the …

Limitations And Exceptions In The Wipo Instrument On Genetic Resources And Associated Traditional Knowledge, Sean Flynn

Joint PIJIP/TLS Research Paper Series

One of the hot topics in the World Intellectual Property Organization (WIPO) diplomatic conference on an instrument on “Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources” is whether and what exceptions language should be included in the text. At the brief public report from Committee I on May 15, 2024, the Chair reported: “There appears to be adequate support for eliminating Article 4, limitations and exceptions. Some parties opposed.” This Blog provides some background information on the Article and analysis of potentially applicable models and concepts for the provision, including analysis of similar treaties with no exceptions.

Sanctions For Non Disclosure, As Set Out In Article 6 Of The Wipo Basic Proposal On Intellectual Property, Genetic Resources And Traditional Knowledge, Should Include Possible Revocation Of A Patent, James Love, Claire Cassedy

Joint PIJIP/TLS Research Paper Series

The basic proposal for an international legal instrument relating to intellectual property, genetic resources and traditional knowledge associated with genetic resources prepared by the World Intellectual Property Organization (WIPO) Secretariat (GRATK/DC/3) sets out in its Article 3 a narrow obligation to disclose (1) the country of origin of the genetic resource, or if not known, its source, and (2) the Indigenous Peoples or local community that provided traditional knowledge associated with the genetic resource, or the source of such knowledge.

Article 6 of the basic proposal sets out the sanctions and remedies for failures to make such disclosures. Among the …

Compounding Inequities Through Drug Ip And Unfair Competition, Shweta Kumar

IPIPC Papers & Reports

In 2024, the United States experienced its worst drug shortage in over a decade—more than 300 drugs are in shortage, leaving patients without access to lifesaving medicines. Luckily, drug manufacturers are not the only source of drugs. Through drug compounding, licensed pharmacists can create medications that are not commercially available due to discontinuations, shortages, or other supply chain issues. The recent slew of severe drug shortages has forced patients and physicians to rely on compounding pharmacies to make critical drugs for patients—particularly vulnerable patient populations, including pediatric, disabled, and transgender patients—such as mixed amphetamine salts (sold as Adderall), semaglutide (sold …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …