Science and Technology Law Commons^™

Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee

IP Theory

In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to elevate the status …

The Death Of Rules And Standards, Anthony J. Casey, Anthony Niblett

Indiana Law Journal

Scholars have examined the lawmakers’ choice between rules and standards for decades. This Article, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form—the microdirective—which will provide the benefits of both rules and standards without the costs of either. Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a legal choice, …

User-Friendly Taxpaying, Kathleen Delaney Thomas

Indiana Law Journal

Technology is revolutionizing our lives. With the touch of a button or a simple voice command, we can instantly order groceries, get directions, or find the nearest sushi restaurant. Sensibly, the private sector has capitalized on these recent innovations to drive up profits. To sell more laundry detergent, Amazon now enables consumers to order refills by simply pressing the “dash button” mounted above their laundry machines. Starbucks lures more customers by allowing them to pre-order online and have their drink waiting when they arrive at the store. The theory behind this approach is simple: if you want someone to use …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Indiana Law Journal

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current …

The Data-Pooling Problem, Michael Mattioli

Articles by Maurer Faculty

American innovation policy as expressed through intellectual property law contains a curious gap: it encourages individual research investments, but does little to facilitate cooperation among inventors, which is often a necessary precondition for innovation. This Article provides an in-depth analysis of a policy problem that relates to this gap: increasingly, public and private innovation investments depend upon the willingness of private firms and institutions to cooperatively pool industrial, commercial, and scientific data. Data holders often have powerful disincentives to cooperate with one another, however. As a result, important research that the federal government has sought to encourage through intellectual property …

Surrogacy And Citizenship: A Conjunctive Solution To A Global Problem, Caitlin Pyrce

Indiana Journal of Global Legal Studies

People around the world are turning to surrogacy when they are unable to conceive by traditional means. When surrogacy turns traditional notions of parentage upside down, however, countries struggle to find efficient regulations that protect their own citizens, while still recognizing the increasingly global nature of modern society. Children born through surrogacy arrangements between Thai surrogate mothers and Australian intended parents have been confronted with the consequences of inadequate regulation. This note argues that in addition to revising surrogacy legislation to reflect the increasingly transient nature of society, countries must make mirror citizenship reform so children born through surrogacy are …

University Ip: The University As Coordinator Of The Team Production Process, Samuel Estreicher, Kristina A. Yost

Indiana Law Journal

This Article focuses on intellectual property (IP) issues in the university setting. Often, universities require faculty who have been hired in whole or in part to invent to assign inventions created within the scope of their employment to the university. In addition, the most effective way to secure compliance with the Bayh-Dole Act, which deals with ownership of inventions involving federally funded research, is for the university to take title to such inventions. Failure to specify who has title can result in title passing to the government. Once the university asserts ownership, it then decides whether to process a patent …

The Fcc And The “Pre-Internet”, John Blevins

Indiana Law Journal

Network neutrality has dominated broadband policy debates for the past decade. While important, network neutrality overshadows other policy levers that are equally important to the goals of better, cheaper, and more open broadband service. This lack of perspective has historical precedent—and understanding this history can help refocus today’s policy debate. In the 1960s and 1970s, telephone companies threatened the growth of the nascent data industry. The FCC responded with a series of rulemakings known as the “Computer Inquiries” proceedings. In the literature, Computer Inquiries enjoys hallowed status as a key foundation of the Internet’s rise.

This Article, however, argues that …

How Malleability Matters, Jason Rantanen

IP Theory

In The Malleability of Patent Rights^₁, I developed the concept that patent rights are malleable rather than static and fixed, distinguishing malleability from the idea that patent rights are merely uncertain. Malleability refers to the idea that the strength and scope of patent rights can be altered by the actors who interact with a patent well after it has issued. Patent law is full of mechanisms that allow for these post-issuance changes, yet there seems to be no good theoretical argument that supports malleability. At best, I concluded, the costs of malleability must be weighed against the doctrinal …

Kamil Kubik: The Artist And Copyright Observed, Elizabeth Townsend Gard, Yvette J. Liebesman

IP Theory

For over 60 years—from the time he fled his native Czechoslovakia in 1948 until his death in August 2011—Kamil Kubik created amazing oil paintings and pastels. His art graces the walls of The Breakers in Palm Beach, Florida, the Old Ebbett Grill in Washington, DC, and the homes of Presidents, Governors, and celebrities. Many of his works were also printed as lithographs and serigraphs, and sold at more affordable prices than the four-to-five figures that he received for the originals. Fortunately, he was not dependent on the sale of these prints, as most of the original works were unprotected by …

Unlocked And Loaded: Government Censorship Of 3d-Printed Firearms And A Proposal For More Reasonable Regulation Of 3d-Printed Goods, Danton L. Bryans

Indiana Law Journal

This Comment analyzes the regulations in place on 3D-printed firearms and proposes a new standard for regulating 3D-printed goods. Part I provides a brief primer on 3D printing and 3D-printed firearms. Part II turns to the events surrounding Defense Distributed’s creation of the world’s first 3D-printed firearm and the subsequent government censorship of the corresponding CAD files. Part III discusses the regulations affecting 3D-printed firearms and why these regulations are ill-suited for CAD files and 3D-printed goods. Part IV analyzes the implications of treating CAD files and 3D-printed goods as equivalents of traditional goods. Finally, Part V offers a proposal …

The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais

IP Theory

The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media.

In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that:

An actor’s performance, when fixed, is copyrightable if …

Copyright And Cross-Cultural Borrowing: Indo-Western Musical Encounters, Arpan Banerjee

IP Theory

This article traces the history of how Western rock musicians and hip-hop musicians, separated by many decades, have borrowed elements from Indian music. Conversely, the article also discusses how Indian film music composers have frequently, and rather blatantly, copied Western melodies. While cross-cultural borrowing raises complex socio-political questions, this article focuses on some practical legal questions that arise from such borrowing. The article discusses lawsuits filed by artists in India and the United States — from a much-publicized lawsuit against Dr. Dre by the Indian film music composer Bappi Lahiri, to a more recent lawsuit against another Indian film composer …

No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley

IP Theory

Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that …

Are The Courts Singing A Different Tune When It Comes To Music?: What Ever Happened To Fair Use In Music Sampling Cases?, Michael B. Landau

IP Theory

As "fair use" has become more common as a defense to copyright infringement, often successfully, it has not gained any ground in cases involving music sampling. In the years since Campbell v. Acuff-Rose Music, Inc., we have seen the introduction of "transformative use" to fair use analysis. "Transformative use" has led to the holdings that thumbnail reproductions of photographs, parodies of novels, parodies of advertisements, changed artworks, the inclusion of legal briefs in searchable databases, the inclusion of music in film, and the mass digitization of millions of books are all "fair use." Almost every day we read of …

Commentary: Revisiting The Derivative Works Exception Of The Copyright Act Thirty Years After Mills Music, Robert S. Meitus

IP Theory

No abstract provided.

Living Gardens, Living Art, Living Tradition, Roberta R. Kwall

IP Theory

Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not …

Are We Serious About Performers’ Rights?, Mary Lafrance

IP Theory

Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Pre-1972 Sound Recordings: Why Does The Law Treat Them Differently?, June M. Besek

IP Theory

No abstract provided.

The Role Of Agency: Compensated Surrogacy And The Institutionalization Of Assisted Reproduction Practices, Jody L. Madeira, June Cabone

Articles by Maurer Faculty

The surrogacy debate often conflates what should be seen as three distinct issues: the permissibility of the practice under any circumstances, the role of for-profit intermediaries in arranging surrogacy, and the role of compensation in influencing decision-making.

For those who see surrogacy as intrinsically objectionable, nothing short of a total ban will suffice. For those who object to the commodification of reproduction or to the role of for-profit agencies in recruiting surrogates, however, the solutions lie in regulation rather than prohibition. Commercial agencies, unlike infertile couples who enter into arrangements with their friends and relatives, are repeat players. They are …

The Art Of Informed Consent: Assessing Patient Perceptions, Behaviors, And Lived Experience Of Ivf And Embryo Disposition Informed Consent Processes, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

Technology And The Law On The Use Of Force: New Security Challenges In The Twenty-First Century, By Jackson Maogoto, Asaf Lubin

Articles by Maurer Faculty

Review of:

Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century. By Jackson Maogoto. Oxford, UK: Routledge, 2015. Pp xviii, 111. Price: $117.71 (Hardcover).

Generic Entry Jujitsu: Innovation And Quality In Drug Manufacturing, W. Nicholson Price Ii

IP Theory

The manufacturing side of the pharmaceutical industry has been neglected in innovation theory and policy, with the unfortunate result of stagnant manufacturing techniques driving major problems for the healthcare system. This innovation failure has roots in ineffective intellectual property incentives and high regulatory hurdles to innovative change. Changes in pure regulation or intellectual property incentives have significant potential to help the innovation deficit, but are not the only possibility for change. A relatively minor regulatory change could harness the powerful dynamics of pioneer/generic competition surrounding generic drug market entry. If pioneer firms were permitted to make label claims committing to …

Duty And Control In Intermediary Copyright Liability: An Australian Perspective, Kylie Pappalardo

IP Theory

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the …

Cultural Cognition Of Patents, Lisa Larrimore Ouellette

IP Theory

Simply making empirical progress is not always enough to influence policy, as demonstrated by the polarized public discourse over issues ranging from climate change to gun control. The current discourse over patents appears to have a similar pathology, in which cultural values — such as respect for strong property rights or concern about limiting access to knowledge — shape priors and affect the weight given to new information, such that advocates and policymakers on both sides of the patent wars often fail to acknowledge the ambiguity of existing evidence. This Essay suggests that the “cultural cognition” framework might help scholars …

Will There Be A Neurolaw Revolution?, Adam Kolber

Indiana Law Journal

The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.

There will, however, be a neurolaw revolution of …

A Comparative Study Of Gmo Labeling And Liability Systems In The Us, Eu, And South Korea: The Circumstances And A Future Potential For Harmonization, Moonsook Park

Maurer Theses and Dissertations

With the remarkable development of GMOs, GMO trade has also increased. The different attitudes on GMOs among the countries all over the world, specifically the US, EU, and South Korea, have the potential to create international trade conflicts. In order to mediate the conflicts, reasonable labeling and liability systems need to be established to prevent potential GMO risks. The Biosafety Protocol regarding the transboundary movement of GMOs exists to resolve such tensions, but it fails to sufficiently solve the problems and provide clear regulations concerning GMO labeling and liability systems.

A successful GMO labeling and liability system should emphasize the …

Disclosing Big Data, Michael Mattioli

Articles by Maurer Faculty

This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries—from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be widely disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in …

Power And Governance In Patent Pools, Michael Mattioli

Articles by Maurer Faculty

The recent influx of patent pools, research consortia, and similar cooperative groups led by companies at the vanguard of American innovation has raised a pressing question: How does collective action influence the incentive to innovate? This question hinges on how patent pools are internally governed — a topic that has not been deeply examined by legal scholars. Through an original study of fifty-two private agreements, this Article pulls back the veil on patent licensing collectives to examine whether such organizations are designed to encourage long-term innovation.

This study draws on collective patent license agreements spanning the years 1856 to 2013 …

The (Data Privacy) Law Hasn't Even Checked In When Technology Takes Off, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.