Intellectual Property Law Commons^™

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Journal of Intellectual Property Law

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past …

Reconsidering The Willful Blindness Doctrine In Contributory Trademark Infringement, Andrew Ligon Fant

Journal of Intellectual Property Law

The Lanham Act provides for a cause of action of direct trademark infringement. In 1982 the Supreme Court effectively expanded that cause of action by allowing for traditional tort secondary liability in the context of manufacture and distribution of goods. Since that decision, the lower courts have adapted the doctrine of contributory trademark infringement to the modern world. One of those adaptations was the importation of the willful blindness doctrine from criminal law to trademark infringement law. The circuits have divergent standards for what knowledge is required for liability under willful blindness, and the Second Circuit appears to have multiple …

Patent Performativity, Dan L. Burk

Journal of Intellectual Property Law

Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through …

Homography Of Inventorship: Dabus And Valuing Inventions, Jordana Goodman

Duke Law & Technology Review

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for …

Bright Stars Or Unreliable Compasses: Navigating Patent Definiteness During The Fourth Industrial Revolution, N. Thane Bauz

Texas A&M Journal of Property Law

This Article traces the evolution of the definiteness requirement over the course of two centuries. From the time of inventions relating to flour mills, the definiteness requirement evolved into the consequence for drafting uninterpretable claims. Without considering the reasons for this evolution, the Supreme Court in its Nautilus decision returned the standard for assessing definiteness to its root form. Given the consequences are the loss of patent rights, this Article grapples with the Supreme Court’s decision during an era where complex and convergent technologies are more commonplace. The Article also analyzes empirical evidence six years before and six years after …

Biotechnology Patent Law Top Ten Of 2020: Valeant Victorious, Falling Eagle, And Successful Slayback, Kevin E. Noonan, Andrew W. Torrance

Texas A&M Journal of Property Law

This Article discusses the Top 10 BioTechnology Patent Cases of 2020. Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens. As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly others we did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider …

The Construction And Defense Of Artistic Authorship In Contemporary Copyright Disputes, Sophie Bell

Theses and Dissertations

Through the lens of three contemporary copyright infringement cases, this thesis examines topics in the field of art law, each grounded in the recent history of art and its controversies, in order to illuminate the unique set of legal conditions shaping contemporary artmaking, sale, and exhibition in the United States.

Defensive Industrial Policy: Cybersecurity Interventions To Reduce Intellectual Property Theft, Dr. Chad Dacus, Dr. Carl (Cj) Horn

Military Cyber Affairs

Through cyber-enabled industrial espionage, China has appropriated what Keith Alexander, the former Director of the National Security Agency, dubbed “the largest transfer of wealth in history.” Although China disavows intellectual property (IP) theft by its citizens and has set self-sustained research and development as an important goal, it is unrealistic to believe IP theft will slow down meaningfully without changing China’s decision calculus. China and the United States have twice agreed, in principle, to respect one another’s IP rights. However, these agreements have lacked any real enforcement mechanism, so the United States must do more to ensure its IP is …

Beefing Up Skinny Labels: Induced Infringement As A Question Of Law, Garrett T. Potter

Notre Dame Law Review

This Note proposes a novel argument for improving the application of induced infringement by splitting its elements into separate questions of fact and law, incorporating the relevant perception and reasoning of both judge and jury. Part I provides a primer of the Hatch-Waxman Act and interactions (and lack thereof) between the USPTO and FDA in regulating pharmaceutical compositions. Part II assesses the historical landscape that led to the codification of induced infringement. Part III concludes by proposing an alternate approach by treating an element of induced infringement as a question of law, rather than a question of fact, and sets …

Inhuman Copyright Scene: The Forgotten Law Of Art In The Holocaust, Lior Zemer, Anat Lior

Utah Law Review

Artists, authors, musicians, and other creative individuals formed an integral part of the horrific life in the ghettos, concentration camps, and extermination camps during the Holocaust. Through their works, Jewish prisoners documented the atrocities of the Nazis and exposed the untold stories of six million Jews who walked or labored to death. The vast majority of the authors of these works were murdered in gas chambers, labor camps, and ghettos. While much has been written about looted works of art, which were stolen from Jewish families during the Nazi occupation, this material covers only one limited subset of questions relating …

The Truth About Design Patents, Sarah Burstein, Saurabh Vishnubhakat

Faculty Scholarship

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional …

Patents And Plants: Rethinking The Role Of International Law In Relation To The Appropriation Of Traditional Knowledge Of The Uses Of Plants (Tkup), Ikechi Mgbeoji

PhD Dissertations

Legal control and ownership of plants and traditional knowledge of the uses of plants (TKUP) is often a vexed issue, particularly at the international level because of the conflicting interests of states or groups of states in the matter. The most widely used form of juridical control of plants and TKUP is the patent system which originated in Europe. This thesis rethinks the role of international law and legal concepts, the major patent systems of the world and international agricultural research institutions as they affect legal ownership and control of plants and TKUP. The analysis is cast in various contexts …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law Review

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation's development. For patents, prior art is paramount. An invention can't be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn't care if a creative work happens to resemble its predecessors, only that it isn't actually copied from them. In principle, then, outside of the narrow …

Patent Prophylaxis: Expanding Access To Prep Through 28 U.S.C. § 1498, Jonathan A. Bell

William & Mary Law Review

Part I of this Note details the discovery of Truvada for PrEP [pre-exposure prophylaxis] and the ongoing patent infringement litigation brought by HHS [United States Department of Health and Human Services], discusses the patents currently held by CDC and Gilead, and examines the shortcomings of infringement litigation as a means to expand access to the drug. Part II analyzes the mechanism of march-in rights under the Bayh-Dole Act and discusses two previously attempted applications for the HIV-management drug ritonavir to demonstrate why march-in rights will always fail to expand access to life-saving medications or reduce costs to consumers. Part III …

Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett

William & Mary Law Review

At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the ''lawful use" doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States …

A Music Industry Circuit Split: The De Minimis Exception In Digital Sampling, Michaela S. Morrissey

University of Richmond Law Review

When hip-hop icon Biz Markie released his album “All Samples Cleared!” he joked of the end of what was known as the “Golden Age” of digital sampling in the hip-hop and rap music industry. The Golden Age began in the late 1980s, and because there was no regulation of the practice, it was a period of musical enlightenment in which musicians could freely utilize digital sampling without legal repercussion. However, in 2005, the United States Court of Appeals for the Sixth Circuit handed down an opinion that sent shock waves across the music industry. In Bridgeport Music Inc. v. Dimension …

Make Some Sense Of Scent Trademarks: The United States Needs A Graphical Representation Requirement, Gabrielle E. Brill

University of Richmond Law Review

When it comes to consumer loyalty, some businesses have decided to go beyond attracting the eyes. Why not keep customers via their nostrils? Accordingly, the scent marketing industry is booming. Jennifer Dublino, Vice President of Development at ScentWorld Events, remarks that “smell is one of the most unique of human senses. Scent enters the limbic system [of the brain] and bypasses all of the cognitive and logical thought processes and goes directly to the emotional and memory areas of the brain.” Companies like ScentAir have been created specifically to help stores design fragrances that best fit their image and objectives …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Dirty Little Secrets: The Constitutional Feasibility Of Implementing Legislation To Compel Licensing Of Trade Secrets To End The Covid-19 Pandemic, Noah Olson

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Art Of Cross-Examination In Ptab Trials, Philip D. Segrest Jr.

Chicago-Kent Journal of Intellectual Property

Despite similarities in form, a cross-examination in a Patent Trial and Appeal Board (“PTAB”) trial constitutes trial testimony, which is different from a discovery deposition occurring in civil litigation. While most practitioners would readily recognize this distinction in the abstract, it can be easy to fall back into patterns learned in and applicable to pretrial discovery in civil litigation that may not fit for a PTAB cross-examination. The PTAB regulations describe cross-examination as “routine discovery” in the “form of a deposition transcript,” but a civil action discovery deposition and a PTAB trial cross-examination deposition differ in their goals, their applicable …

Did Sotera Stipulations Solve The Fintiv Criticisms?, Nathan Sportel

Chicago-Kent Journal of Intellectual Property

No abstract provided.

An "Opensea" Of Infringement: The Intellectual Property Implications Of Nfts, Madison Yoder

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Digital Killed The Analog Star: An Evaluation Of Copyright Law And Its Effects On The Modern Jazz Musician, Anne Wamsley

Undergraduate Theses

This paper is a survey of modern American copyright law and an analysis of its effectiveness in the digital age through the use of grounded theory research practices, including a review of precedent and history of copyright law and interviews of jazz musicians that have varied levels of experience in different positions throughout the industry. Since music has become a commodity, it has needed to be protected by the law to ensure that musicians are paid fairly for the consumption of their work. Before the modern era, musicians made their living predominantly from record, tape, and CD sales, making concert …

Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis Crouch, Homayoon Rafatijo

Akron Law Review

The Supreme Court has warned against the creation and expansion of patent-specific rules of procedure where the general law would suffice. The recently revived and expanded Kessler doctrine is one such patent-specific rule, and we argue its time has come for resorption into the general law of preclusion that has since expanded to encompass the doctrine. We utilize a novel law and economic analysis of the rules of preclusion to demonstrate how lower courts’ expansion of the Kessler doctrine defeats the rationale behind the general law of preclusion.

Intellectual Property For A Better Future, Marketa Trimble

Media & Informal Publications

Professor Trimble delivered this presentation for Propriedade Intelectual sem fronteiras: seminário comparativo Brasil-Estados, a World Intellectual Property Day event organized by the United States Consulate General in Sao Paulo, Brazil and Mackenzie Presbyterian University (Sao Paolo, Brazil).

5b Patent Law Session. Patent Potpouri, Andrew Bowler, Michael Williams, Sepehr Shahshahani, Ari Laakkonen, Marleen Van Den Horst, Simon Holzer

29th Annual Intellectual Property Law & Policy Conference (2022)

No abstract provided.

1c Plenary Session. Views From The Judiciary, Hugh C. Hansen, Richard Arnold, Stephen Burley, Paolo Catallozzi, Klaus Grabinski, Simon Holzer, Gordon Humphreys, Robin Jacob, Carl Josefsson, Rian Kalden, F. Scott Kieff, Paul R. Michel, Pauline Newman, Peter Charleton, Edger F. Brinkman

29th Annual Intellectual Property Law & Policy Conference (2022)

No abstract provided.

5d Patent Law Session. Ptab, John B. Pegram, Adam Mossoff, Patricia Martone, Brian Scarpelli, George E. Badenoch, Brian P. Murphy

29th Annual Intellectual Property Law & Policy Conference (2022)

No abstract provided.

6d Copyright Law, Competition & Trademark Law Session. U.S. Copyright Developments, Michael S. Shapiro, David O. Carson, Kevin Amer, Joshua L. Simmons, Jennifer Pariser, Sandra Aistars

29th Annual Intellectual Property Law & Policy Conference (2022)

No abstract provided.