Intellectual Property Law Commons^™

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

Data Privacy In K-12 Education: Protecting Students In The 21st Century, Kate Hughes

SMU Science and Technology Law Review

Connectivity has come to define a new generation, with kids today comprising a large sector of the online community. With most of their days spent at school, it is no surprise that the 21st-century classroom has become a playground in the digital sense, with districts growing increasingly reliant on “EdTech” platforms that promise high-impact solutions to an industry entrusted with laying the foundations of the next generation. As the “big data” movement continues to progress, the education sector will continue to reinvent itself alongside the chance to discover new efficiencies and create new opportunities for timely feedback, individualized instruction, and …

From Cigarettes To Cereal: Analyzing The Rise, Peak, And Fall Of Ultra-Processed Foods And The Legal Battle Against Industry Food Deception, Charlotte F. Baird

SMU Science and Technology Law Review

This Comment explores the legal, regulatory, and public health dimensions of ultra-processed foods (UPFs) in the United States and abroad, revealing the urgent need for comprehensive reform. It traces the historical evolution of UPFs, exposing how Big Tobacco strategically pivoted into the food industry after facing public backlash and regulatory crackdowns with cigarettes and tobacco products. Using the same research tactics, behavioral manipulation, and aggressive marketing practices once employed to sell cigarettes, Big Tobacco companies repurposed their corporate expertise to engineer food designed for potential addiction, overconsumption, and profit, while often targeting children and marginalized communities. This Comment critically examines …

Incremental Innovation, George Horvath

SMU Science and Technology Law Review

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in trans- formative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need …

Shutting Down The Supply Chain Pipeline Of Counterfeit Goods Running From Alibaba To Amazon, Daniel C. Chow

SMU Science and Technology Law Review

An immense supply chain pipeline constantly funnels millions of counterfeit goods from Alibaba’s e-commerce sites in China to third party sellers who sell these goods on Amazon to U.S. consumers. Amazon has acknowledged that it has a problem with counterfeits on its e-commerce sites, but its current responses to counterfeiting are primarily performative and intended to pacify disgruntled brand owners and frustrated consumers. Amazon’s responses will likely have little or no effect on counterfeits on its websites. This Article sets forth a direct and straightforward method for shutting down or seriously disrupting this pipeline based on using China’s existing laws. …

Systemic Risk And The Social Contract, Kevin Frazier

SMU Science and Technology Law Review

The stability of the constitutional order turns, in part, on a stable economy and reliable advances in technology. Political order cannot withstand economic collapse or a massive technological failure. Such crises chip away at the collective will to adhere to the social contract because they indicate the government may not have the capacity to uphold its end of the bargain—protecting individual liberty from broad threats. “Unprecedented” economic downturns, however, have a precedent of emerging from the very deliberate decision of some actors to pursue extremely risky behavior in their self-interest at the expense of the public. Societal disruption from over-dependence …

Retail Innovation Through Ai: Benefits And Liabilities, W. Michael Schuster, Simon E. Corrigan

SMU Science and Technology Law Review

This article investigates the transformative capabilities of artificial intelligence (AI) within the retail industry. We highlight significant opportunities for product customization, innovation, and enhanced supply chain efficiency, while also examining complex legal challenges associated with AI-generated content. In particular, concerns in the copyright realm are highlighted— including documented biases against AI-produced works. Recognizing these issues, retailers should adopt proactive legal strategies, ensure transparency, and consider hybrid human-AI collaborative approaches. Strategically addressing these issues will help maximize consumer and business benefits while mitigating legal exposure.

Robot Regulators, Brian L. Frye

SMU Science and Technology Law Review

No abstract provided.

Visual Legal Rhetoric In The Age Of Generative Ai And Deepfakes: Renaissance Or Dark Ages?, Michael D. Murray

SMU Science and Technology Law Review

The paradoxical development of visual generative AI tools, such as OpenAI’s DALL-E 3, Midjourney, and Stable Diffusion, simultaneously signals a renaissance and a potential dark age in visual rhetoric and communication. On the one hand, these tools democratize the creation of visual content, empowering attorneys and others to become artists and illustrators of their legal communications without needing to learn how to draw. These AI systems can simplify complex legal concepts, bridge language barriers, and enhance advocacy. But on the other hand, the proliferation of deepfakes presents significant challenges for visual rhetoric. Deepfakes can quickly and easily create realistic but …

Willful Ignorance Or Embracing Ai To Find Prior Art? Uspto Misses The Mark, Henry H. Perritt Jr.

SMU Science and Technology Law Review

Artificial intelligence (AI) is frequently in the news. Policymakers and business executives must decide whether it is a revolutionary phenomenon, likely to overturn established enterprises and practices, or if it is a mere modest advancement in decades-old natural language capability over-advertised by Silicon Valley seeking the “next big thing” and hyped by reporters eager for the next byline. The patent office and the patent bar are not immune from the turmoil. The USPTO has issued several policies and inquiries related to the impact of AI on various aspects of patent prosecution. Most recent is a Request for Comments on the …

Disenchanting Consent, Ruifeng Song

SMU Science and Technology Law Review

Despite being criticized as a flawed mechanism for data protection, con- sent has witnessed a revival in the recent wave of state privacy statutes. One factor that contributed to the revival may be the widely held belief that con- sent constitutes the “cornerstone” of data privacy laws. This Article conducts a comparative historical survey to examine the validity of this belief. The findings are twofold. First, contrary to what many believe, consent has been playing a limited role in global data privacy laws. Second, consent is an inherently defective mechanism for data protection. Some of its problems have existed since …

Transportation Security Administration Use Of Facial Recognition Technology: Turbulence Surrounding Traveler Rights, Mckenly Redmon

SMU Science and Technology Law Review

Facial recognition technology has been employed by law enforcement agencies and private companies for decades. This technology promises safer and more efficient processes to identify individuals in the name of safety. However, not everyone approves of their biometric data being collected. This Article provides an overview of the current use of facial recognition technology by the Transportation Security Administration (TSA) in airport security checkpoints. It begins by explaining the underlying technology behind facial recognition and explores the safety and security concerns behind it. Building on this foundation, this Article then evaluates how the TSA’s use of facial recognition influences science …

The Sky’S Not The Limit: Navigating Starlink’S Impact On Global Connectivity And Regulation, Michael N. Hillebrand

SMU Science and Technology Law Review

This case note examines the governance implications arising from the onset of accelerated satellite internet expansion and explores potential regulatory solutions for effective governmental oversight. Due to the interconnected nature of the internet and its global network, international organizations and treaties play a crucial role in content and data regulation, and rapid technological evolution presents increasing difficulties for these regulatory frameworks to keep pace. These challenges are particularly evident in satellite-based broadband internet services, with SpaceX’s Starlink emerging as the most prominent and currently relevant service in this domain. Proponents of this technology emphasize its ability to provide internet access …

Debugging The Trademark Laws Part Ii: Criminal Penalties For Trafficking In Counterfeit Microelectronics, Patricia E. Campbell

SMU Science and Technology Law Review

Counterfeit microelectronics have been a persistent problem in government and industry supply chains for many years. Counterfeit electronic parts (e.g., integrated circuits, transistors, capacitors) pose serious risks to human health and safety, harm the economy, and jeopardize national security. Trafficking in counterfeit goods and services was first criminalized in 1984, and Congress has acted on several occasions to increase the corresponding penalties. Nevertheless, the trade in counterfeit microelectronics continues to evolve to meet market demands, and relatively few criminal cases have been brought for trafficking in counterfeit microelectronics. While several factors may contribute to this apparent lack of enforcement, the …

It Is Our Flaws That Make Us Humane: How Technology Ruined Judicial Craft, Shai Dothan, Gregor Maučec

SMU Science and Technology Law Review

There is ample evidence that people are not completely rational. They suffer from a series of biases that limit their abilities to make the best decisions and to stick to them. Judges are a unique group of people. They go through many years of training that counter some of these biases, but not all of them. In fact, there is a whole field of research dedicated to predicting how judges, with their human flaws, are going to behave. But today, judges can use an increasing number of artificial intelligence (AI) tools to assist with their craft, particularly with research and …

Regulation To Reinforce The Evidentiary-Science Base Of U.S. Medicine In The Age Of "Omics", Michael J. Malinowski

SMU Science and Technology Law Review

United States’ technology transfer law and policy (TTLP) integrates government, academia, and industry—a “triple-threat” research and development (R&D) methodology—and harnesses commercial incentives to stimulate market application of federal government-funded invention. TTLP, which has proven a potent catalyst for remarkably prolific biomedical R&D since Congress enacted its cornerstone legislation in 1980, is transforming U.S. medicine to molecular medicine—to personal genome medicine (PGM)—in real time. A genomics (gene function in the context of an organism’s entire genome, meaning its full set of genetic instructions) complement to the Human Genome Project (HGP) emerged in the 1990s. Genomics has given rise to a portfolio …

The Artificial Intelligence Trolley Problem: Governance In The Post-Chevron World, James M. Cooper, Kashyap Kompella

SMU Science and Technology Law Review

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Top Ten Biotechnology Patent Cases Of 2024: Loper Bright, Federal Circuit Turmoil, Patent Term Adjustment, And Naturally Occurring Nucleic Acids, Kevin E. Noonan, Andrew W. Torrance

SMU Science and Technology Law Review

A pivotal year for biotechnology patent law, 2024 was marked by consequential court rulings and evolving legal frameworks. This article surveys the ten most significant judicial decisions impacting biotech patents, highlighting major themes and trends in policy, litigation, and regulation. Courts at all levels grappled with core patentability requirements in the life sciences, from the Supreme Court’s continued laissez-faire stance on subject-matter eligibility to the Federal Circuit’s stringent enforcement of disclosure sufficiency rules.

Should Copyright Protect Racist Works? A Review Of Intellectual Property And Immorality: Against Protecting Harmful Creations Of The Mind By Ned Snow, Cathay Smith

Texas A&M Journal of Property Law

This Essay reviews Ned Snow’s provocative book, Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind, and critically examines the intersection of copyright law and morality. It explores the ethical dimensions of copyright protection and examines whether works which fail to advance societal progress, as defined by Snow, should be ineligible for copyright. Drawing parallels between pornography and offensive and racially insensitive classic children’s literature and films, this Essay considers the broader implications of denying copyright to immoral works, including the potential for increased dissemination of harmful content, the challenge of aligning copyright with evolving moral standards, …

Incentivizing Bad Behavior Through Copyright, Ned Snow

Texas A&M Journal of Property Law

This Essay comes in response to the comments of Professors Margaret Chon, Cathay Smith, and David Taylor as part of the Texas A&M Journal of Property Law’s Symposium featuring a discussion on my book Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind. In this Essay, I argue that the law should refrain from copyrighting pornographic content. This conclusion is based on a factual assumption and a moral principle. The factual assumption is that pornographic content is harmful to society. The moral principle is that applying law to incentivize harmful conduct undermines the effectiveness of law. My argument, …

Color Inside The Lines: Achieving Pharmaceutical Deal Certainty When The Courts Keep Redrawing The Ip Lines, James Farrington

Texas A&M Journal of Property Law

In The Genome Defense, Jorge Contreras vividly describes the story of how gene patents were challenged in Association for Molecular Pathology v. Myriad Genetics and the U.S. Supreme Court’s reversal of the USPTO’s long-standing practice of allowing patents on human genes. This Article examines how pharmaceutical companies navigate intellectual property challenges in the wake of the Myriad decision and other landmark cases that have redrawn the boundaries of patent-eligible subject matter. Drawing on the Author’s 35 years of experience in life science transactions, the Article analyzes three key strategies that pharmaceutical companies employ: (1) adapting their business and licensing …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Texas A&M Journal of Property Law

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.

The Purpose Of Progress? A Response To Professor Ned Snow’S Intellectual Property And Immorality, Margaret Chon

Texas A&M Journal of Property Law

In Intellectual Property and Immorality, Professor Snow fearlessly puts forth the proposition of morality in the consideration of IP’s social welfare goals. By doing so, he invites important conversations about the underlying purposes and values of an area of law that powerfully shapes our knowledge-based economies and societies. Towards this end, this Response has three propositions: (1) expansion of the foundational justifications for IP to include the key insights of human development (sometimes referred to as human flourishing) theory; (2) recognition not just of harms to individuals but also harms to communities and societies; and (3) imbuing of greater …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Refereeing Nil Athlete Agents: Examining Equitable And Protective Measures For Ncaa Student-Athletes In A Post-Alston Environment, Katherine A. Berman

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines the challenges posed by the lack of regulation surrounding athlete agents involved in Name, Image, and Likeness (NIL) deals across the United States and their impact on collegiate student-athletes. Despite efforts from the NCAA and higher education institutions for federal NIL legislation and guidance, many proposed solutions face significant obstacles, including conflicts with state laws and partisan divisions. This Note traces the commercialization of student-athletes through the history of the NCAA, reviews key NIL cases, and analyzes current state and federal legislation focused on athlete representation. This Note also explores the emergence of NIL service providers, including …

Jerking The Rug Out From Under A Trade Secret Licensee: Is Transfer Of The Patent A Remedy?, Henry H. Perritt Jr.

Michigan Technology Law Review

Predominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of …