Intellectual Property Law Commons^™

New Frontiers In Technology: Can Traditional Intellectual Property Rights Laws Be Adapted And Applied To Nfts?, Mariyah S. Wakhariya

Catholic University Journal of Law and Technology

A decade ago, ‘NFTs’ were rarely heard of or known to anyone, unless they worked in or kept up with the tech world. However, they are not new - they have been around for almost two decades. Their popularity has grown over the past few years. ‘NFT’ stands for ‘non-fungible token’. An NFT is a digital file with a unique identity that is verified on a blockchain and is therefore not interchangeable - i.e., a kind of crypto asset, like an authentication certificate for digital artifacts. In theory, NFTs can represent almost any real or intangible property. These days, it …

Name, Image, And Likeness Deals And Immigration Consequences For International Student-Athletes, Eric E. Johnson, Kit Johnson

Faculty Articles

International student-athletes are being sidelined from deals that would allow them to reap financial benefits from licensing their name, image, and likeness (“NIL”). The calls to sideline these students are not coming from the NCAA or even the federal agencies in charge of immigration. The calls are coming from overly cautious universities, attorneys, and academics who incorrectly see NIL licensing as work or employment that is incompatible with the visa obligations of international student-athletes. This Article argues that international athletes can license their NIL without violating their visa terms.

Foreword: A Tipping Point For Antitrust Law, C. Paul Rogers Iii

SMU Science and Technology Law Review

No abstract provided.

Antitrust Accountability Delayed: State Antitrust Enforcement And Multidistrict Litigation, Roger P. Alford

SMU Science and Technology Law Review

State Attorneys General play a crucial role in the enforcement of antitrust laws. Defendants have successfully delayed state enforcement proceedings by centralizing them with private lawsuits in multidistrict litigation. A new venue law has foreclosed that delay tactic, placing State Attorneys General on equal footing with federal antitrust enforcers in deciding where, when, and how to prosecute antitrust cases.

Generative Ai Art: Copyright Infringement And Fair Use, Michael D. Murray

SMU Science and Technology Law Review

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to …

Biotechnology Patent Law Top Ten Of 2022: Inducement, Clear Error, And Interferences Galore, Kevin E. Noonan, Andrew W. Torrance

SMU Science and Technology Law Review

Five-year anniversaries are symbolized by a product of natural biotechnology: wood. This article marks the wood anniversary of the “Top Ten Biotechnology Patent Cases” series that began in 2018. Imagining the world in 2018 is challenging, in part because it was, indeed, a different world. There had not been a major pandemic in one hundred years. Inflation was low. The economy hummed along. No individual war appeared to threaten more than regional stability. O tempora, o mores! The year 2022 was quite different. SARS-CoV-2 continued to stalk the land, having had a monumentally mortiferous effect for several years. High inflation …

Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …

Learned Hand's Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …

Judicial Review Bars In The Patent System, Medicare, And Beyond, Laura E. Dolbow

Publications

No abstract provided.

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

When Inventors Go Bankrupt, Joseph Dietz

Cybaris®

No abstract provided.

Antibody Patents: Use Of The Written Description And Enablement Requirements At The Patent & Trademark Office, S. Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Global Digital Governance Through The Back Door Of Corporate Regulation, Orit Fischman-Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

How Santa Clara Law's "Tech Edge Jd" Program Improves The School's Admissions Yield, Diversity, & Employment Outcomes, Laura Lee Norris, Eric Goldman

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Survey & Legal Analysis Of Select Global Trademark Anti-Counterfeiting Statutes & Evidence Of Prosecutions, Kari Kammel

Marquette Intellectual Property & Innovation Law Review

None

Grand Jury Information And Government Contractors: Reconciliation Through Privacy Law, Andrew Holzmann

Marquette Intellectual Property & Innovation Law Review

None

International Tax Agreements As The Final Push For Us Adoption Of Adequate Protection In Connection With The Gdpr, Olivia Hansen

Marquette Intellectual Property & Innovation Law Review

None

Paws Off My Profile: Protecting The Persona In A Modern Digital Age, Samantha P. Mccaleb

Marquette Intellectual Property & Innovation Law Review

None.

Artificial Intelligence Owning Patents: A Worldwide Court Debate, Maria A. Penkwitz

Marquette Intellectual Property & Innovation Law Review

In the article "Artificial Intelligence Owning Patents: A Worldwide Court Debate," Maria A. Penkwitz explores the legal conflict over whether AI can be a patent inventor. The central case involved DABUS, an AI system that independently created new inventions. Penkwitz's research highlights a significant global divide in legal perspectives.

While courts in the United States, United Kingdom, and Australia have rejected patents for AI-generated inventions, citing existing laws that require a human inventor, other nations are more progressive. Germany, for example, permits a human to be credited alongside the AI, and South Africa made a landmark ruling by granting a …

Intellectual Property And Accessibility For Individuals With Disabilities, Eman A. Daas

Marquette Intellectual Property & Innovation Law Review

None.

Systematizing Scents: The Case For Chemically Standardized Nontraditional Scent Trademarks, Jared Novitzke

Marquette Intellectual Property & Innovation Law Review

None.