Intellectual Property Law Commons^™

The Three Conundrums: Doctrinal, Theoretical, And Practical Confusion In The Law Of Sexually Explicit Speech, Kyla P. Garrett Wagner, P. Brooks Fuller

UC Law SF Communications and Entertainment Journal

In First Amendment law, one rarely disputed notion is that sexually explicit speech is less valuable than so-called “core” forms of expression, such as political discourse. This study revives that dispute with a focus on the Supreme Court’s justifications for categorizing sexually explicit speech as “low-value” in the first place. The analysis reveals three conundrums plaguing the Court’s jurisprudence: categorizing restrictions on sexually explicit speech; interpreting the value and harms of sexually explicit speech; and assessing the evidence (or lack thereof) for restrictions on sexually explicit speech. This article explains how these conundrums should be resolved in sexually explicit speech …

From Principles To Practices: Open Science At Europe’S Universities. 2020-2021 Eua Open Science Survey Results, Rita Morais, Bregt Saenen, Federica Garbuglia, Stephane Berghmans, Vinciane Gaillard

Copyright, Fair Use, Scholarly Communication, etc.

This report presents the outcomes of the 2020-2021 EUA Open Science Survey and provides evidencebased recommendations for institutions, researchers, research funders and policymakers on the transition towards Open Science. The 2020-2021 EUA Open Science Survey focused on the level of development of Open Science in Europe‘s universities, addressing the role of Open Science in institutions’ strategic priorities and its implementation in institutional practices. In addition, the survey transversally addressed both the established (Open Access, research data) and emerging (e.g. citizen science, open education) fields of Open Science. This survey was open to all interested European higher academic institutions from October …

Shepardizing Patents?, Jorge L. Contreras

Utah Law Faculty Scholarship

In a world where patents play an increasingly important role in the technology development and innovation landscape, it is critical that reliable information about the status and history of patents be made available to the public. The USPTO has made a public commitment to the “discoverability, accessibility, and usability of public patent and trademark data”, and as such it can help to collect, organize and display contextual patent data in a simple and user-friendly fashion. A uniform “Shepardization” system for patents, which clearly flags issues for potential licensees, defendants and innovators and alerts the public to the potential investment and …

Toleration Of Free Speech: Imposing Limits On Elected Officials, Amos N. Guiora

Utah Law Faculty Scholarship

Tolerance is a nuanced issue, inevitably raising concerns regarding tolerant of what and whom. There is a sense of subjective judgment in the tolerance-intolerance debate; the terminology reflects particular norms, mores, customs, and traditions. What one might perceive as a healthy and tolerable challenging of existing acceptable “ways,” another would not tolerate because of the very challenge it poses to society. That split between tolerance-intolerance applies to both speech and conduct. It reflects everyday tensions, challenges, and conflict. In examining the tolerance-intolerance debate in the speech context there are a number of assumptions integral to a robust, liberal democracy: the …

Patent Reality Checks Eliminating Patents On Fake, Impossible And Other Inoperative Inventions, Jorge L. Contreras

Utah Law Faculty Scholarship

The recent assertion of patents originally held by Theranos, the defunct blood analysis company whose founders are under federal indictment for fraud, highlights the existence of patents that claim non-existent and inoperative inventions. While such patents may ultimately be subject to validity challenges in court, their issuance nevertheless has harmful effects on markets and innovation. I propose several modest administrative and legislative measures directed toward the elimination of patents on inoperative inventions including (1) increasing PTO efforts to detect potentially inoperable inventions, (2) heightening examination requirements, including a certification of enablement, for certain inventions, (3) enabling greater public input into …

A “Journey” Through Band Agreements, Jordan M. Whitford

UC Law SF Communications and Entertainment Journal

No abstract provided.

Mapping The Literature Of Health Care Management: An Update, Amber T. Burtis, Susan M. Howell, Mary K. Taylor

Copyright, Fair Use, Scholarly Communication, etc.

Objective: This study aims to identify the core journals cited in the health care management literature and to determine their coverage in the foremost bibliographic databases used by the discipline.

Methods: Using the methodology outlined by the Medical Library Association’s Nursing and Allied Health Resource Section (NAHRS) protocol for “Mapping the Literature of Nursing and Allied Health Professions,” this study updates an earlier study published in 2007. Cited references from articles published in a three-year range (2016–2018) were collected from five health care management journals. Using Bradford’s Law of Scattering, cited journal titles were tabulated and ranked according to the …

Environmental Justice And The Gullah Geechee: The National Environmental Policy Act's Potential In Protecting The Sea Islands, Paul N. Nybo

South Carolina Law Review

No abstract provided.

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Characteristics Of Patent Examiners Who Issue Litigated / Invalidated Patents, S. Sean Tu

Law Faculty Scholarship

No abstract provided.

Rethinking Copyright Harmonization, Clark Asay

Indiana Law Journal

For nearly half a century, the United States has been one of the main proponents of harmonizing the world’s copyright laws. To that end, the U.S. government has worked diligently to persuade (and, in some cases, bully) most of the world’s countries to adopt copyright standards that resemble those found in the United States. The primary reason for this push to harmonize the world’s copyright laws is simple: the United States has long been a net exporter of copyrighted works, and so the U.S. government has sought to ensure that other countries provide U.S. authors with the same economic rights …

Cyber Trespass And Property Concepts, Adam Macleod

IP Theory

No abstract provided.

Mark My Words, This Is A Heavy Weight To Carry: The Eleventh Circuit Court Sets The Standard Weight Given To A Presumption Of Validity Of A Registered Mark, Dana Nagel

Mercer Law Review

The proof is in the pudding. Proving something by a preponderance of the evidence is a tough burden to bear. In any civil case, the party who bears the burden of proof is at a disadvantage from the beginning. Accordingly, courts take their time deciding which party has to ultimately persuade the court to find in its favor. While history has decided many questions about who bears the burden, the same is not true in trademark law. Courts have had immense difficulty determining which party, in trademark cases, loses if the evidence is balanced. This note examines a continuing split …

Intellectual Property Rights And Public Policy On The Role Of Plain Packaging And Health Care In India, Anil Kumar Vishwakarma, Maria Devi Angerhofer

Indonesian Journal of International Law

Although tobacco is a multi-billion-dollar industry globally, its consumers are prone to various non-communicable diseases, such as cancer, heart attack, etc. Therefore, to prevent this, many states have taken initiatives to discourage the consumption of this harmful product. Many international organizations like World Health Organization (WHO) have supported these preventive measures through The WHO Framework Convention on Tobacco Control (WHO FCTC). The main objective of this convention is to encourage the concept of packaging all brands of tobacco products in a uniform standard, which is known as the Plain packaging process. This was the first initiative adopted by Australia. This …

The Unfranchised Competitor Doctrine, John Greil

Villanova Law Review (1956 - )

No abstract provided.

Eifl And Library Group Comments On Updated Draft Wipo Cmo Toolkit (2021), Electronic Information For Libraries

Testimony and Submissions

EIFL and partner organizations in the library, archives and museum communities responded to a public consultation to provide additional comments on the updated draft WIPO Good Practice Toolkit for Collective Management Organizations (CMOs), released on 27 May 2021. Publication of the updated draft Toolkit follows an earlier consultation that took place in April 2021.

The updated version of the Toolkit contains an expanded section on supervision and monitoring of CMOs (Section 13). We noted three concerns in the updated Section 13, in particular. In our comments, we propose a number of amendments to address the concerns in Section 13, along …

What’S The Big Deal? How Researchers Are Navigating Changes To Journal Access, Danielle Cooper, Oya Y. Rieger

Copyright, Fair Use, Scholarly Communication, etc.

The dominant mode by which research libraries have provided maximum journal access as cheaply as possible—subscription bundles or “Big Deals”—is giving way to new approaches. This transition is taking place through a combination of negotiations, activism, business modeling, user needs research, and decision support, among other factors. To support these processes, Ithaka S+R partnered with 11 academic libraries to understand researcher perceptions to help inform their ongoing strategic decision making about Big Deal journal subscriptions.

Recognizing that libraries must also undertake case-by-case assessments prior to making decisions about any particular journal package, in this report we share findings from the …

America's Broken Copyright Law: How Marvel And Sony Sparked Public Debate Surrounding The United States' "Broken" Copyright Law And How Congress Can Prevent A Copyright Small Claims Court From Making It Worse, Izaak Horstemeier-Zrnich

Cleveland State Law Review

Following failed discussions between Marvel and Sony regarding the use of Spider-Man in the Marvel Cinematic Universe, comic fans were left curious as to how Spider-Man could remain outside of the public domain after decades of the character’s existence. The comic community came to realize that Marvel was restricted in the use of its own character because of the Sonny Bono Copyright Term Extension Act of 1998 and the Supreme Court’s decision in Eldred v. Ashcroft. This realization sparked an online conversation regarding the United States’ lengthy copyright terms, and what many refer to as a “broken” copyright system. …

A Legislative Framework To Avoid A Vulgar Trademark System, Jordan Kilijanski

Buffalo Law Review

No abstract provided.

Copyright And Creativity: Critiques Of The Us System And Possible Reform Strategy For Egypt, Dina Magdy El-Hussieny Selite

Theses and Dissertations

The optimum goal of copyright is to maximize the production of creative works and innovations by balancing the benefits of the copyright owners and public users. This balance requires securing the rights of copyright owners to induce authors to produce their creations, while at the same time providing public users with regulated freedom to use copyrighted work to produce new creations and innovations. In this context, it is necessary to explore the problems of the copyright system and address them in the optimum way to achieve the goals of copyright. This paper analyzes the problems of the United States copyright …

Session 1: Access To Legal Services - The Role Of Innovation And Technology, Steven Bender, Stacy Butler, Anna Carpenter, Michael Cherry, Sands Mckinley, Kimball Dean Parker, Miguel Willis

SITIE Symposiums

This expert panel is addressing access to justice problems. People without access to lawyers and legal services suffer in many ways not limited to divorce, domestic violence, and educational roadblocks. This panel will ask what lawyers can do to help, in what ways can technology help or replace lawyers in the delivery of legal and non-legal services. It will also explore different legal services being offered by individuals who do not have a JD, online firms, and developing technology in a law firm owed subsidiary. There are six panelists who are broken into two categories: (1) the innovation and delivery …

Opening Session, Annette Clark, Steven Bender

SITIE Symposiums

This year's conference focuses on the social good, highlighting three access barriers fundamental in law and society - access to legal services (and more generally, justice), access to health and health care during the COVID-19 pandemic, and access to financial services for the unbanked or underbanked.

Future Of Scholarly Communication: Forging An Inclusive And Innovative Research Infrastructure For Scholarly Communication In The Social Sciences And Humanities, Maciej Maryl, Marta Błaszczyńska, Operas

Copyright, Fair Use, Scholarly Communication, etc.

Authors: Karla Avanço • Ana Balula • Marta Błaszczyńska • Anna Buchner • Lorena Caliman • Claire Clivaz • Carlos Costa • Mateusz Franczak • Rupert Gatti • Elena Giglia • Arnaud Gingold • Susana Jarmelo • Maria João Padez • Delfim Leão • Maciej Maryl • Iva Melinščak Zlodi • Kajetan Mojsak • Agata Morka • Tom Mosterd • Elisa Nury • Cornelia Plag • Valérie Schafer • Mickael Silva • Jadranka Stojanovski • Bartłomiej Szleszyński • Agnieszka Szulińska • Erzsébet Tóth-Czifra • Piotr Wciślik • Lars Wieneke

This report discusses the scholarly communication issues in Social Sciences and …

Bully No More: Why Trademark Owners Engage In Trademark Overreach And How To Prevent It, Quynh La

Washington Law Review

At its core, trademark law exists as a tool for consumer protection. Thus, trademark owners use policing and enforcement to maintain a trademark’s goodwill, which in turn protects consumers from confusion. But policing and enforcement can lead to trademark overreach and bullying—which undermine the goal of trademark law. This Comment explains that trademark owners are incentivized to engage in aggressive enforcement tactics because courts weigh enforcement efforts in favor of trademark strength. And strong trademarks receive strong protection because such marks are more likely to succeed in trademark infringement litigation. To curb trademark bullying and realign trademark law with its …

Tracking Change And Continuity In Twenty-First Century Copyright Fair Use [Review], Michael Goodyear

Other Publications

A review of Barton Beebe, An Empirical Study of U.S. Co right Fair Use Opinions Uvdated. 1978-2019, 10 N.Y.U. J. Intell. Prop. & Ent. L. 1 (2020).

Led Zeppelin, “Stairway To Heaven,” And Cognitive Aging: Implications For Laches In The Copyright Context, John M. Mccormick-Huhn

Nevada Law Journal

No abstract provided.

The Curious Case Of Horseracing Data Caught In A Tangled Web Of Relationships – The Racing Partnership Ltd V. Sports Information Services Ltd [2020] Ewca Civ 1300, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

This paper comments on the recent split decision of the English Court of Appeal in The Racing Partnership Ltd v. Sports Information Services Ltd [2020] EWCA Civ 1300 concerning the common law action for misuse of confidential information. Although the majority overturned the decision of the trial judge and found in favour of the defendant, this author will explain why the conclusion reached by the dissenting judge is the more compelling.

Trade Marking ‘Covid’ And ‘Coronavirus’ In The Usa: An Empirical Review, Irene Calboli

Faculty Scholarship

Famous and sensational events often lead to several entities filing trade mark applications that include terms related to these events. The most recent example of this phenomenon is the COVID-19 pandemic, which has led to large numbers of (largely controversial) filings worldwide.

In this article, I review the applications including the terms ‘COVID’ and ‘Coronavirus’ filed with the United States Patent and Trademark Office (USPTO) in 2020 based on the data available and recorded by the end of January 2021. These data offer significant information related to the type of products for which the applications were filed, the type of …

Introduction: Lenses, Methods, And Approaches In Intellectual Property Research, Irene Calboli, Maria Lillà Montagnani

Faculty Scholarship

The relevance of Intellectual Property (IP) Law in our society has increased dramatically over the last several years. Globalization, digitization, and the rise of post-industrial information-based industries have all contributed to a new prominence of IP Law as one of the most important factors in driving innovation and economic development. At the same time, the significant expansion of IP rules has impacted many areas of public policy such as public health, the environment, biodiversity, agriculture, and information, in an unprecedented manner. No longer relegated to a cohort of few specialized experts, IP Law is now at the front and centre …

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.