Intellectual Property Law Commons^™

Drugged Out: How Cognitive Bias Hurts Drug Innovation, Cynthia M. Ho

San Diego Law Review

This Article hopes to provide a balanced picture of how current patent law and policy promotes mostly modest, yet high priced new drugs, as well as how cognitive biases have perpetuated this situation. This Article highlights the important interplay of cognitive biases not only by the frequently maligned industry but also previously presumed neutral parties, such as academics and policymakers. Most scholars would likely agree that considering how to optimize or at least not distort innovation is an important part of legal scholarship. However, to date, there has been little recognition, let alone robust discussion, of how patent and related …

Rethinking Online Privacy In Canada: Commentary On Voltage Pictures V. John And Jane Doe, Ngozi Okidegbe

Canadian Journal of Law and Technology

This article examines the Voltage decision, with the view that the bona fide standard safeguards intellectual property rights at the cost of online privacy rights and will proceed in three parts. Part I provides a brief contextualization of the issues. Part II is an analysis of the Voltage decision. Part III examines how the bona fide standard is a relatively low threshold. This article concludes by considering the possibility of shifting to a higher standard for disclosure, as well as a possible solution for the effect that a higher standard could have on copyright owners.

Combining Familial Searching And Abandoned Dna: Potential Privacy Outcomes And The Future Of Canada's National Dna Data Bank, Amy Conroy

Canadian Journal of Law and Technology

This article aims to respond to the government’s request by explaining the nature of that relationship and by arguing that the combined use of familial searching and analysis of abandoned DNA would present a serious risk for genetic privacy. The risk is particularly acute given that it would effectively circumvent the existing justification for the NDDB, leading to inclusion of individuals whose DNA profiles have not been uploaded directly onto the data bank. To substantiate this main argument, this article proceeds in three parts. The first describes the current Canadian law on familial searching and the ongoing interest in amending …

With Great Power Comes Little Responsibility: The Role Of Online Payment Service Providers With Regards To Websites Selling Counterfeit Goods, J. Bruce Richardson

Canadian Journal of Law and Technology

This article will explain the current avenues for intellectual property rights holders to make use of existing anti-counterfeiting policies made available by financial companies dealing in electronic payments, and argue that current policies, while helpful, are not sufficient. The article will conclude by demonstrating that policy makers have options to intervene and regulate the use of online payment services, either directly through legislation or indirectly through facilitating “best practices.”

The Song Remains The Same: Preserving The First Sale Doctrine For A Secondary Market Of Digital Music, Marco Figliomeni

Canadian Journal of Law and Technology

This article will explore the origins and rationale for the first sale doctrine. A review of the most recent American case law shows the court rejecting the doctrine’s applicability in a digital sphere. I suggest that in spite of the court’s rigid interpretation of the U.S. Copyright Act, formulating a digital first sale doctrine is a matter better left to lawmakers. A flourishing digital secondary market can promote competition and innovation while making content more accessible to the public, but its endorsement requires an appreciation of its adverse effect on the primary market for copyright owners. The article fast-forwards to …

Access Of Evil? Legislating Online Youth Privacy In The Information Age, Agathon Fric

Canadian Journal of Law and Technology

This article seeks to address what constitutes youth online privacy, how youth conceive of their privacy, whether their privacy needs protecting, and, if so, how youth privacy should be regulated online. First, the article begins by rooting the issue of online youth privacy in the current social, technological, economic, political, and legal context, drawing on social science research to demonstrate both the threats and opportunities created by technology for youth privacy.

Second, the analysis focuses on the relative strengths and weaknesses of current federal legislation as the primary law governing the collection, use, and disclosure of youth’s personal information through …

Ownership Of Intellectual Property, Policy Of The University Of Nebraska Board Of Regents, University Of Nebraska Board Of Regents

Institutional Repository Information

The prompt and open dissemination of the results of research undertaken at the University of Nebraska and the free exchange of information among scholars are essential to the fulfillment of the University's obligations as an institution committed to excellence in research, education, and service. Matters of ownership, distribution, and commercial development nonetheless arise in the context of technology transfer, which is also an important aspect of the University's commitment to public service. The University of Nebraska as a public institution has a responsibility to recognize the State’s contribution of tax support for research and creative activity by devoting an appropriate …

To Sign Or Not To Sign: What Makes The Difference Vis-A-Vis Access Copyright?, Margaret Ann Wilkinson, Rob Tiessen

Law Presentations

No abstract provided.

Licence Agreements And Copyright: An Examination Of The Issues, Lisa Di Valentino

FIMS Presentations

In this presentation I will discuss some of the factors that are relevant to an understanding of the relationship between copyright and private ordering of legal obligations such as licensing agreements and technological protection measures. I will conclude that there is a strong argument to be made that provisions purporting to limit fair dealing and other exceptions may be unenforceable.

3d Printers, James Barker, Nicholas Pleasants, Peter Montine, Shudan Zhu

Technology Law and Public Policy Clinic

A preliminary report, addressing potential market disruption, the state of the law, and recommendations on future legislative action regarding consumer-grade 3D printing.

Cognitive Economy And The Trespass Fallacy: A Response To Professor Mossoff, Saurabh Vishnubhakat

Faculty Scholarship

In his recent essay The Trespass Fallacy in Patent Law, Professor Adam Mossoff argues cogently that the metaphor of trespass has become a misused basis for patent indeterminacy critiques that it cannot conceptually or empirically support. While sharing his caution that metaphors are not to be trifled with, this reply suggests that trespass has both a smaller role and a larger potential benefit in the debate on patent indeterminacy, and advances an opposite solution.

The Number Of Scholarly Documents On The Public Web, Madian Khabsa, C. Lee Giles

Copyright, Fair Use, Scholarly Communication, etc.

The number of scholarly documents available on the web is estimated using capture/recapture methods by studying the coverage of two major academic search engines: Google Scholar and Microsoft Academic Search. Our estimates show that at least 114 million English-language scholarly documents are accessible on the web, of which Google Scholar has nearly 100 million. Of these, we estimate that at least 27 million (24%) are freely available since they do not require a subscription or payment of any kind. In addition, at a finer scale, we also estimate the number of scholarly documents on the web for fifteen fields: Agricultural …

Copyright Law, Privacy, And Illegal File Sharing: Defeating A Defendant's Claims Of Privacy Invasion, Daniel Gomez-Sanchez

Touro Law Review

No abstract provided.

The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley

Michigan Law Review

Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. …

Intellectual Property Without Borders? The Effect Of Copyright Exhaustion On Global Commerce, Diepiriye A. Anga

Brigham Young University International Law & Management Review

No abstract provided.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Third International Intellectual Property Scholars Roundtable, which was held at the DePaul University College of Law on May 1, 2014.

Judicial Capacities And Patent Claim Construction: An Ordinary Reader Standard, Greg Reilly

Michigan Telecommunications & Technology Law Review

Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. The claim construction debate largely overlooks the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, …

Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim

Michigan Telecommunications & Technology Law Review

This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it …

Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff

Michigan Telecommunications & Technology Law Review

“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …

The Fairest Of Them All: The Creative Interests Of Female Fan Fiction Writers And The Fair Use Doctrine, Pamela Kalinowski

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.