Social and Behavioral Sciences Commons^™

Markets In Ip And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The purpose of market definition in antitrust law is to identify a grouping of sales such that a single firm who controlled them could maintain prices for a significant time at above the competitive level. The conceptions and procedures that go into “market definition” in antitrust can be quite different from those that go into market definition in IP law. When the issue of market definition appears in IP cases, it is mainly as a query about the range over which rivalry occurs. This rivalry may or may not have much to do with a firm’s ability to charge a …

Intellectual Property, Copyright, And Piracy: A Cultural View, Steven W. Staninger

Copley Library: Faculty Scholarship

Religion plays a major role in determining culture, and has an important effect on how laws are both written and enforced. The concept of intellectual property varies in different cultural traditions, and the dominant religion of a culture plays a major role in the how copyright is viewed and if it is respected or enforced. This paper briefly evaluates the cultures of three major religious and intellectual traditions to determine what, if any, effect their beliefs and values have on the respect for and enforcement of laws defending intellectual property and copyright.

Mergers, Market Dominance And The Lundbeck Case, Herbert J. Hovenkamp

All Faculty Scholarship

In Lundbeck the Eighth Circuit affirmed a district court’s judgment that a merger involving the only two drugs approved for treating a serious heart condition in infants was lawful. Although the drugs treated the same condition they were not bioequivalents. The Eighth Circuit approved the district court’s conclusion that they had not been shown to be in the same relevant market.

Most mergers that are subject to challenge under the antitrust laws occur in markets that exhibit some degree of product differentiation. The Lundbeck case illustrates some of the problems that can arise when courts apply ideas derived from models …

Altmetrics: A Manifesto, Jason Priem, Dario Taraborelli, Paul Groth, Cameron Neylon

Copyright, Fair Use, Scholarly Communication, etc.

First paragraph:

No one can read everything. We rely on filters to make sense of the scholarly literature, but the narrow, traditional filters are being swamped. However, the growth of new, online scholarly tools allows us to make new filters; these alt-metrics reflect the broad, rapid impact of scholarship in this burgeoning eco-system. We call for more tools and research based on altmetrics.

Calling Bulls**T On The Lanham Act: The 2(A) Bar For Immoral, Scandalous, And Disparaging Marks, Megan M. Carpenter, Kathryn T. Murphy

Law Faculty Scholarship

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services. However, Section 2(a) of the Lanham Act prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. …

Antitrust And Patent Law Analysis Of Pharmaceutical Reverse Payment Settlements, Herbert J. Hovenkamp

All Faculty Scholarship

Patent settlements in which the patentee pays the alleged infringer to stay out of the market are largely a consequence of the Hatch-Waxman Act, which was designed to facilitate the entry of generic drugs by providing the first generic producer to challenge a pioneer drug patent with a 180 day period of exclusivity. This period can be extended by a settlement even if the generic is not producing, and in any event all subsequent generic firms are denied the 180 day exclusivity period, significantly reducing their incentive to enter.

The Circuit Courts of Appeal are split three ways over such …

The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco

All Faculty Scholarship

No abstract provided.

Business Roundtable: Patents & Trademarks, Robert Berry

Librarian Publications

An October 2011 presentation by Robert Berry, Research Librarian and Patent and Trademark Resource Center representative for the Sacred Heart University Library.

Small Business Strategies Series: Patents & Trademarks, Robert Berry

Librarian Publications

A November 14 2011 presentation by Robert Berry, Research Librarian and Patent and Trademark Resource Center representative for the Sacred Heart University Library.

Trumbull Library System, Business Program: Patents & Business Intelligence, Amy Jansen, Robert Berry

Librarian Publications

A November 10, 2011 presentation by Amy Jansen, Business Librarian at Sacred Heart University and Robert Berry, Research Librarian and Patent and Trademark Resource Center representative for the Sacred Heart University Library.

Knowledge Curation, Michael J. Madison

Articles

This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types …

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

Articles

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from …

Moral Rights And Supernatural Fiction: Authorial Dignity And The New Moral Rights Agendas, Jacqueline D. Lipton

Articles

In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the …

Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp

All Faculty Scholarship

For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.

Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …

The Creativity Effect, Christopher Buccafusco, Christopher Jon Sprigman

Faculty Scholarship

This Article reports the first experiment to demonstrate the existence of a valua­tion anomaly associated with the creation of new works. To date, a wealth of social science research has shown that the least amount of money that owners of goods are willing to accept to part with their possessions is often far greater than the amount that purchasers would be willing to pay to obtain them. This phenomenon, known as the endowment effect, may create substantial inefficiencies in many markets. Our experi­ment demonstrates the existence of a related "creativity effect." We show that creators of works value their creations …

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

All Faculty Scholarship

No abstract provided.

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

All Faculty Scholarship

In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Notice And Patent Remedies, Herbert J. Hovenkamp

All Faculty Scholarship

In private enforcement systems such as the one for patents, remedies perform the “public” function of determining the optimal amount of protection and deterrence. If every patent were properly granted and had just the right scope to incentivize innovation, then strict enforcement and harsh penalties for infringement would be a good idea. But in a world where too many patents are granted, their boundaries are often ambiguous and scope excessive, things are not so simple. The expected likelihood and magnitude of the penalty determines the number of infringement suits and the litigation resources that will be poured into them. As …

Building A Collaborative Digital Collection: A Necessary Evolution In Libraries, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Law libraries are losing ground in the effort to preserve information in the digital age. In part, this is due declining budgets, user needs, and a caution born from the great responsibility libraries feel to ensure future access instead of selecting a form that may not survive. That caution, though, has caused others, such as Google, to fill the silence with their vision. Libraries must stand and contribute actively to the creation of digital collections if we expect a voice in future discussion. This article presents a vision of the start of a collaborative, digital academic law library, one that …

Introduction To Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

This document contains the table of contents, introduction, and a brief description of Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford 2011).

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation Without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of …