Intellectual Property Law Commons^™

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend ...

Paper Of Record: Modernizing Ownership Disclosures For U.S. Patents, Jonathan Stroud, Levi Lall

West Virginia Law Review

No abstract provided.

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Journal of Intellectual Property Law

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the ...

Exposing The “Folklore” Of Re-Recording Clauses (Taylor’S Version), Justin Tilghman

Journal of Intellectual Property Law

Many artists believe that their significance, power, or notoriety comes from how many GRAMMY awards they have won or how well their albums sales do the first week. However, very few artists recognize that the true power comes in the form of owning the rights to their master recordings. Given how difficult it is to achieve commercial success as an independent artist, many artists will turn to major record companies to help with their music production and distribution. This help, however, is not unconditional. The artist will sign over the master recording rights to the song or album to the ...

Greasing The Wheels Of Patent Law: Clarifying The Judicial Exceptions Via American Axle & Manufacturing, Inc. V. Neapco Holdings Llc, Michael Oliver

Journal of Intellectual Property Law

Patents stimulate the economy, they give inventors (and investors in the patent) confidence that their work will be protected. You have never been able to patent laws of nature, natural phenomena or abstract ideas. These combine to create the judicial exceptions. The issue is that these terms are so broad that it is difficult to determine when a patent is connected to a judicial exception. The Supreme Court created the Alice test, a two-part test to determine whether a claim is tied to a judicial exception. That was back in 2014 and is the last time the Supreme Court has ...

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Journal of Intellectual Property Law

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past decade is adding “.com ...

Reconsidering The Willful Blindness Doctrine In Contributory Trademark Infringement, Andrew Ligon Fant

Journal of Intellectual Property Law

The Lanham Act provides for a cause of action of direct trademark infringement. In 1982 the Supreme Court effectively expanded that cause of action by allowing for traditional tort secondary liability in the context of manufacture and distribution of goods. Since that decision, the lower courts have adapted the doctrine of contributory trademark infringement to the modern world. One of those adaptations was the importation of the willful blindness doctrine from criminal law to trademark infringement law. The circuits have divergent standards for what knowledge is required for liability under willful blindness, and the Second Circuit appears to have multiple ...

Patent Performativity, Dan L. Burk

Journal of Intellectual Property Law

Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through ...

Homography Of Inventorship: Dabus And Valuing Inventions, Jordana Goodman

Duke Law & Technology Review

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for failing ...

Biotechnology Patent Law Top Ten Of 2020: Valeant Victorious, Falling Eagle, And Successful Slayback, Kevin E. Noonan, Andrew W. Torrance

Texas A&M Journal of Property Law

This Article discusses the Top 10 BioTechnology Patent Cases of 2020. Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens. As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly others we did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider ...

Bright Stars Or Unreliable Compasses: Navigating Patent Definiteness During The Fourth Industrial Revolution, N. Thane Bauz

Texas A&M Journal of Property Law

This Article traces the evolution of the definiteness requirement over the course of two centuries. From the time of inventions relating to flour mills, the definiteness requirement evolved into the consequence for drafting uninterpretable claims. Without considering the reasons for this evolution, the Supreme Court in its Nautilus decision returned the standard for assessing definiteness to its root form. Given the consequences are the loss of patent rights, this Article grapples with the Supreme Court’s decision during an era where complex and convergent technologies are more commonplace. The Article also analyzes empirical evidence six years before and six years ...

Inhuman Copyright Scene: The Forgotten Law Of Art In The Holocaust, Lior Zemer, Anat Lior

Utah Law Review

Artists, authors, musicians, and other creative individuals formed an integral part of the horrific life in the ghettos, concentration camps, and extermination camps during the Holocaust. Through their works, Jewish prisoners documented the atrocities of the Nazis and exposed the untold stories of six million Jews who walked or labored to death. The vast majority of the authors of these works were murdered in gas chambers, labor camps, and ghettos. While much has been written about looted works of art, which were stolen from Jewish families during the Nazi occupation, this material covers only one limited subset of questions relating ...

Research Exceptions In Comparative Copyright, Sean Flynn, Luca Schirru, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to ...

The Truth About Design Patents, Sarah Burstein, Saurabh Vishnubhakat

Faculty Scholarship

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a ...

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode ...

Dirty Little Secrets: The Constitutional Feasibility Of Implementing Legislation To Compel Licensing Of Trade Secrets To End The Covid-19 Pandemic, Noah Olson

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Art Of Cross-Examination In Ptab Trials, Philip D. Segrest Jr.

Chicago-Kent Journal of Intellectual Property

Despite similarities in form, a cross-examination in a Patent Trial and Appeal Board (“PTAB”) trial constitutes trial testimony, which is different from a discovery deposition occurring in civil litigation. While most practitioners would readily recognize this distinction in the abstract, it can be easy to fall back into patterns learned in and applicable to pretrial discovery in civil litigation that may not fit for a PTAB cross-examination. The PTAB regulations describe cross-examination as “routine discovery” in the “form of a deposition transcript,” but a civil action discovery deposition and a PTAB trial cross-examination deposition differ in their goals, their applicable ...

Did Sotera Stipulations Solve The Fintiv Criticisms?, Nathan Sportel

Chicago-Kent Journal of Intellectual Property

No abstract provided.

An "Opensea" Of Infringement: The Intellectual Property Implications Of Nfts, Madison Yoder

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis Crouch, Homayoon Rafatijo

Akron Law Review

The Supreme Court has warned against the creation and expansion of patent-specific rules of procedure where the general law would suffice. The recently revived and expanded Kessler doctrine is one such patent-specific rule, and we argue its time has come for resorption into the general law of preclusion that has since expanded to encompass the doctrine. We utilize a novel law and economic analysis of the rules of preclusion to demonstrate how lower courts’ expansion of the Kessler doctrine defeats the rationale behind the general law of preclusion.