Intellectual Property Law Commons^™

The Puzzle Of Biologics Manufacturing Platform Patents, Osmat Azzam Jeferson, W. Nicholson Price Ii, S. Sean Tu, Saurabh Vishnubhakat, Arti K. Rai

Articles

The predominance of manufacturing process patents asserted in litigation by originator biologics companies against would-be biosimilar entrants has resulted in a number of Congressional and administrative agency proposals that could increase scrutiny and limit enforceability.

Analysis Of The Agenda For Sccr 46, Pijip

Joint PIJIP/TLS Research Paper Series

Protection of Broadcasting Organizations

The central question for the Broadcasting Treaty, in line with the 2007 General Assembly Mandate, is whether there is sufficient “agreement on objectives, specific scope and object of protection” to warrant a recommendation for a diplomatic conference. (WO/GA/34/16). The 2006 GA mandated that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006).

The SCCR 45 Chair’s Summary states:“[w]ith respect to objectives, there is common understanding … that the treaty should be narrowly focused on …

Un©Ertainty And Dis©Omfort, Richard Chused

Northwestern Journal of Technology and Intellectual Property

This essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight …

Quo Vadis, Fair Use? The Future Of Fair Use After The Warhol Decision, Vicenç Feliú, Josh Lida

Northwestern Journal of Technology and Intellectual Property

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings.

The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial …

The Times They Are A-Changin': Adapting Copyright Law To Generative Ai, Giovanni Lomonaco

Pace Law Review

Artificial intelligence has come a long way since the days of the “heartless” tin man of the Wizard of Oz, and the cool, precise autonomy of Kit from Nightrider. We have moved rapidly from mere questions about what life could be like with autonomous machines, to having books, movies, and albums created using machines for part or even all of the process. The Copyright Act, however, has not come as long of a way since the implementation of the most recent version of the Act in 1976. Recently, the federal district court for the District of Columbia held …

Pursuing Patent Protection In The U.S. Via The Pct: Legal And Practical Implications For 371 And Bypass Routes, Francisco Tschen

Cleveland State Law Review

The Patent Cooperation Treaty (“PCT”) has emerged as a pivotal mechanism for inventors and companies seeking international patent protection. The PCT provides a unified application process accepted by member countries, simplifying, and standardizing the procedural aspects of filing for patent protection in multiple countries. For inventors pursuing patent protection in the United States via the PCT, inventors must submit their application with the United States Patent and Trademark Office (“USPTO”) and choose between one of two primary routes: 1) entering the U.S. national stage under 35 U.S.C. §371 (“371 route”), or 2) filing a continuation or divisional of the PCT …

Second-Guessing The Jury: The Federal Circuit's Flawed Take On Enhanced Damages In Halo V. Pulse, Dennis D. Crouch

Faculty Publications

This article critically examines the Federal Circuit's February 2025 decision in Halo v. Pulse, focusing on the court's approach to enhanced damages in patent infringement cases. The analysis identifies a fundamental tension between jury findings of willful infringement under a clear and convincing evidence standard and the district court's subsequent discretion to deny enhanced damages by essentially reconsidering the same evidence. The article argues that the Federal Circuit's affirmation of this approach undermines the Supreme Court's 2016 Halo decision, which sought to make enhanced damages more accessible in cases of egregious misconduct. By creating an artificial distinction between "willful infringement" …

Documentary History Of The Broadcast Treaty In The Sccr (Global Version), Luca Schirru, Lokesh Vyas, Haddija Jawara, Lukas Ruthes Gonçalves, Katie Mcgee, Yara Misto, Sean Michael Fiil Flynn

Joint PIJIP/TLS Research Paper Series

The objective of this study is to systematically map all meetings of the Standing Committee on Copyright and Related Rights (SCCR) and the General Assemblies (GA) of the World Intellectual Property Organization (WIPO) to extract, compile, and organize all relevant statements made Member States regarding the proposed Broadcasting Treaty.

The analysis was based on publicly available data from the WIPO website, particularly the official pages dedicated to each SCCR and GA meeting. Our primary focus was on statements recorded in the official "Report" document of each session. When available, we also examined supplementary documents, such as the "Summary by the …

Adopting Permissioned Blockchain Models To Enhance Consumer Protection And Comply With Consumer Protection Laws, Erika Buenrostro

Featured Student Work

Blockchain technology enables decentralized, peer-to-peer transactions and data management, offering transparency while raising data privacy and consumer protection concerns. As the current administration promotes blockchain adoption, including cryptocurrency, more users and businesses will likely integrate the technology. This thesis provides a framework to help businesses adopt blockchain while ensuring compliance with the California Consumer Privacy Act (CCPA). To prevent data mishandling and legal penalties, consumers and businesses must stay informed about the risks and evolving state privacy laws.

A CCPA-compliant approach retains blockchain’s benefits through a permissioned model, storing only non-personal (neutral) data on-chain while keeping personal information off-chain in …

Objectives And Principles For An Instrument On Limitations And Exceptions: Relevant Excerpts And Proposals, Sean Flynn, Luca Schirru

Joint PIJIP/TLS Research Paper Series

The Committee on Copyright and Related Rights (SCCR) has been mandated by the 2012 General Assembly to work toward “an appropriate international legal instrument or instruments (whether through model law, joint recommendation, treaty, and/or other forms)”. In SCCR 43, the Committee adopted a Work Program (SCCR/43/8) to draft “objectives, principles, and options” for potential instruments. With the goal of facilitating the discussion within the Committee and the design of principles and objectives, our research team systematically gathered and organized relevant excerpts from a variety of sources including existing treaties, laws, SCCR documents, academic contributions, and civil society proposals. This document …

In Defense Of The Texas Statutory Easement, Matthew Crockett

Texas A&M Journal of Property Law

More than half the states, including Texas, have adopted a little-known statutory procedure by which a landlocked property owner may ask the government to exercise eminent domain to gain an easement over a neighbor’s property. Texas’s version, the rarely cited Texas Transportation Code section § 251.053, raises as many questions as it answers. This Article dissects section § 251.053, discusses the arguments for and against statutory easements, and argues in favor of statutory easements, particularly in Texas.

What's Important To Write About? A Century Of Washington Law Review Topics, Hugh Spitzer

Washington Law Review

This Article examines the topics of all lead articles in Washington Law Review during its past ninety-eight years of publication. The analysis illustrates the changing interests of legal academics, student editors, and the working lawyers and judges who have read and used the articles over a century. For its first fifty years, the journal focused on general topics of interest to practitioners, Washington law matters, business and tax law, and government regulation. Other topics, such as legal and judicial system reform, constitutional law, and comparative and international law, were present in modest numbers. In its second half century, Washington Law …

The Fintiv Pendulum Swings Again: More Discretionary Denials Coming Soon, Dennis D. Crouch

Faculty Publications

This article examines the USPTO’s recent rescission of the June 2022 Vidal memorandum, signaling a significant policy shift in the Patent Trial and Appeal Board's (PTAB) approach to discretionary denials of inter partes reviews (IPRs). The rescission reinstates the precedential status of Apple Inc. v. Fintiv, Inc. and its six-factor test for evaluating whether to deny IPR institution based on parallel district court litigation. The article traces the evolution of discretionary denials under the America Invents Act (AIA), from their initial limited application to the expansive approach under Director Iancu, the subsequent narrowing under Director Vidal, and now the anticipated …

Overloading The 1% “Circuit Breaker”: The Indiana Tax Court Constitutionally Expands Curtilage, Andrew W. Swain

Texas A&M Journal of Property Law

In its 2024 decision, Sawlani v. Lake County Assessor, the Indiana Tax Court reviewed the constitutionality of the Indiana General Assembly’s statutory limit of the constitutionally prescribed 1% tax cap to only one acre of land—curtilage—surrounding the taxpayer’s principal place of residence. The Tax Court held the legislature’s limitation unconstitutional, finding no verbiage in the relevant constitutional provision that justified limiting the tax cap to just one acre. This Article critically examines the Court’s decision in Sawlani, arguing that the ruling represents a significant departure from established judicial principles and legislative intent, undermining the legislature’s authority and introducing …

Why Jack Daniel's Can't Stop #Westelmcaleb, And What Now?, Irina D. Manta, Kavita D. Balchand

William & Mary Bill of Rights Journal

This Article proceeds in four Parts. Part I provides a basic overview of trademark law and brand protection. It explains the key components of the Lanham Act, the central federal legislation in this area—including the two federal causes of action, trademark infringement and trademark dilution—and explores the law’s role in brand protection. Next, Part II discusses the area of social media and brand promotion. It begins with examining the rise of social media and the emergence of hashtags, in addition to trademarks used within hashtags and the registration of hashtags by the United States Patent Trademark Office (USPTO) as well …

Fame, Fakes, And The First Amendment: A Three-State Analysis Of The Right Of Publicity In Addressing Deepfakes, Alexandra Reilly

William & Mary Bill of Rights Journal

Part I of this Note will set the scene of current concerns with deepfakes by those in media and pending changes in the right of publicity landscape. Part II discusses the standing of the right of publicity in three states. Parts III and IV address the current balancing tests for the First Amendment and intellectual property statutes. Part V examines the pathway for expansion of the right of publicity federally to combat the threat posed by deepfakes and Part VI analyzes the interplay with intellectual property doctrines and the First Amendment.

This abstract has been taken from the author's introduction.

Real Concerns For An Artificial Threat: Artists, Ai, And The Battle To Script Hollywood’S Future, Evan Sommer

Nevada Law Journal

No abstract provided.

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Akron Law Review

This article examines the ongoing negotiations at the World Intellectual Property Organization (WIPO) regarding the protection of genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs). It provides a comprehensive overview of the historical background, key provisions, challenges, and reflections on the diplomatic efforts leading to the establishment of the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (GRATK Treaty). It explores issues surrounding disclosure obligations, including the lack of a clear definition for "confidential information" and the debate over sanctions and remedies. The article examines the challenges and implications of key provisions in the Basic …

Do Androids Dream Of Economic Incentives?, Timothy Murphy

Akron Law Review

Current discussions on artificial intelligence inventorship or authorship are focused in the patent and copyright spaces. These discussions largely ignore the trade secrets space outside the context of other’s ownership of AI-related technology. This is likely due to the disconnect between creatorship and ownership that exists in trade secrets law, but that is not present in patent and copyright law. In particular, there is no requirement of human creatorship in trade secrets law, but patents and copyrights might require a human creator. This article explores the possibility of AI ownership of AI-generated information under current trade secrets law for modern …

Governing Generative Ai, Daryl Lim

Akron Law Review

This Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as …

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. They write to address the plaintiff, Novartis Pharmaceuticals Corporation (Novartis), contention that the Medicare drug price negotiation program effectuates a taking of personal property in violation of the Fifth Amendment. Amici submit this brief to provide the Court with the historical and legal background necessary to understand two issues: first, the constitutionality of government price negotiations and price regulations; second, the federal government’s use of patents. The amici explain how Courts have historically ruled on these questions, …

Ethical Considerations Of Commercial Utilization Of Consumer Health Data To Build Valuable Intellectual Property, Jen Neal

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Ensuring Free, Immediate, And Equitable Access To Federally Funded Research (August 25, 2022)

Copyright, Fair Use, Scholarly Communication, etc.

Ensuring Free, Immediate, and Equitable Access to Federally Funded Research (August 25, 2022)

The "Principles Of Equity" In Dewberry, Andres Sawicki

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Plight Of The American Innovator, David R. Soucy

Chicago-Kent Journal of Intellectual Property

The American innovator is at risk. Our U.S. patent system unfortunately favors the speculators over the innovators. In the fight against questionable patent suits brought by non-practicing entities (i.e., patent trolls), those disagreements have become a one-sided affair in favor of the investor. This unjust circumstance arises due to the immunity patent trolls have from the innovator’s patents. A frustrating predicament for an innovator who has often made substantial investments in protecting his or her technology that go for naught in a dispute with an entity who does not put products into the stream of commerce. Now § 285 of …

Guardians Of Cyberspace: Censorship, Ai-Generated Child Imagery & The Role Of Online Platforms, Derick A. Kalt

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Reviewing The Reviewers: Loper Bright's Impact On Judicial Review Of Patent Trial And Appeal Board Ipr Practice, Jason A. Engel, George C. Summerfield, Devon C. Beane

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Warner Chappel Music, Inc. V. Nealy And The Copyright Act's Statute Of Limitations, Tyler T. Ochoa

Chicago-Kent Journal of Intellectual Property

The U.S. Copyright Act’s statute of limitations is unremarkable. Nonetheless, disputes concerning the interpretation and application of this statute have sufficiently vexed the courts that it has been the subject of two Supreme Court decisions in the past decade. Most recently, Warner Chappell Music, Inc. v. Nealy resolved a circuit split that lasted only a few years. Despite this resolution, and the seeming unanimity of the lower courts in adopting the discovery rule of accrual, closer examination reveals that the lower courts are applying the discovery rule in two very different ways, depending on the nature of the dispute between …

Organic Websites: Certification Of Ai-Generated Or Human-Written Content On The Internet, Andrew W. Torrance, Bill Tomlinson

Chicago-Kent Journal of Intellectual Property

This paper proposes the development of a certification system analogous to the standards used in organic food labeling, designed to distinguish websites based on the proportion of human-written versus AI-generated content. In an era where AI plays an increasingly prominent role in content creation, this system would provide transparency for consumers and uphold fair competition in digital markets. The certification would allow website creators to present verifiable evidence of their content’s provenance, ranging from entirely human-made, to a mix of human and AI contributions, to fully AI-generated content. Additionally, this paper explores the legal and policy frameworks necessary for implementing …

How To Stop Employees From Stealing Your Trade Secrets: Shifting The Focus To Prevention And Mitigation, Spencer Rabe

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.