Intellectual Property Law Commons^™

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 …

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 …

The Second Life Of Information, Thomas D. Haley

UF Law Faculty Publications

Information permeates every aspect of modern life. It is the price we pay for access to online services and the form in which we embody creative works. Law and policymaking tend to focus on first-order uses and transactions; information for access serves as the paradigmatic example. But information enjoys a robust second life—one that constitutes the true value and power that drives firms’ decisionmaking—as assets. Once aggregated and assetized, the power and risk associated with information increases exponentially.

To explore the implications of information’s second life, this Article introduces the concept of “untethered information.” Assetization depends on severing the connections …

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.

Artificial Intelligence And Intellectual Property, Part Iii: Ip Protection For Ai-Assisted Inventions And Creative Works, Joshua Landau

American University Business Law Review

Chairman Darrell Issa, Ranking Member Hank Johnson, distinguished members of the Subcommittee on Courts, Intellectual Property, and the Internet ("Subcommittee") of the Committee on the Judiciary ("Judiciary Committee"), on behalf of the Computer and Communications Industry Association (CCIA) and its members, thank you for this opportunity to share our views on intellectual property (IP) protection for artificial intelligence (AI)-assisted works and inventions.

Copyright, Creativity, And Skill: Authorship And Ai-Assisted Works, Lucas S. Osborn

Scholarly Works

Generative artificial intelligence ("Al") has increasingly become a focal point in legal discussions, raising complex issues across multiple domains, including algorithmic bias, defamation, intellectual property, and privacy. This Article specifically examines the implications of Al-assisted works, with a focus on text-to-image generators, such as Midjourney, that possess the ability to create detailed visual art from simple text prompts. The tools are not, however, limited to simple prompts. Users retain the ability to introduce greater complexity by specifying a host of variables that define the resulting image. Al-assisted art implicates significant legal rights and responsibilities. As to responsibilities: Can the image …

“It Doesn’T Matter What Your Name Is:” The Case Against Corporate Ownership Of Persona Rights In Modern Professional Wrestling, Calvin Holle

Marquette Sports Law Review

No abstract provided.

The Interaction Between Privacy Laws And Restrictive Licensing Agreements In Cross-Border Satellite Imagery, Ida Samardar

IP Theory

No abstract provided.

A Personal Interview With William Patry: His Thoughts On Music, Ai, And Copyright

IP Theory

No abstract provided.

The Vicious Patent Cycle: Addressing The Current Conflict Facing Startup Valuation And Patent Risk Through Policy Change, Karlie Hinton

IP Theory

Young, startup, and growth companies play an increasingly important role in driving innovation and economic growth, but they face distinct challenges when attempting to leverage valuable assets to secure funding and scale their ventures. The valuation of startup companies, especially those built around new technologies and corresponding intellectual property, presents a complex challenge. With limited financial history and uncertain futures, investors often turn to proxies like patents to ascribe potential value. In recent years, the practice of startups using patents to secure investment and higher valuations has become increasingly common. However, this growing reliance on patents raises important questions about …

Paternity, Protection, And Pirates: A Queer Theory Analysis Of Intellectual Property Metaphors, Eden Sarid

IP Theory

Intellectual Property and queer theory share a fundamental concern with the interplay between private and public, tangible and intangible, and language and form. Queer theory emphasizes how language impacts the construction of identity and belonging, highlighting that discourse plays a pivotal role in structuring gender, sexuality, and normativity. Intellectual Property is often portrayed as strictly neutral, laser-focused on spurring creativity and innovation. However, is this portrayal reflective of reality? And does this purported neutrality hold up in IP’s rhetoric? By examining two principal IP terminologies through a queer lens – the term “protection” to describe IP legal privilege, and the …

The Mathematics Of Regulatory Fragmentation: Understanding The Multiplicative Costs Of State-Level Platform Requirements, Amanda Reid

IP Theory

The recent wave of state-level social media regulation represents an unprecedented experiment in territorial control of digital platforms. While constitutional questions around state authority remain central to these debates, this article examines a distinct but complementary concern: the mathematical reality of how overlapping technical requirements multiply compliance burdens. These laws aim to protect youth online through technical mandates, yet they create a regulatory patchwork that generates multiplicative rather than additive costs. Following combination theory [N(N-1)/2], each new state regulation creates conflict points with existing requirements.

This article analyzes how this regulatory multiplication affects platform architecture, user experience, and safety outcomes. …

Under The Radar: The Hidden Harms Of Patent Practices In Defense Contracting, Hunter Schmittou

IP Theory

28 U.S.C. § 1498 allows the federal government and its contractors to use patented technologies without prior authorization, with the government assuming liability for infringement. While originally intended to facilitate procurement, its modern application has weakened patent protections, allowing contractors to incorporate patented innovations with minimal legal or financial consequences. This system disincentivizes private-sector investment in military technology, distorts competition, and increases procurement inefficiencies, ultimately placing the burden of infringement on taxpayers. The resulting imbalance not only stifles innovation but also entrenches reliance on a small group of dominant defense contractors, reducing technological diversity and slowing progress. Addressing these shortcomings …

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

"Sufficiently Distinct" Is Insufficient To Determine Design Patent Infringement, Perry Saidman

IP Theory

The “ordinary observer” test for design patent infringement essentially asks whether the patented and accused designs are “substantially the same” in overall appearance. Although courts are very skilled in listing differences between the two designs, the final infringement determination is very subjective, being based on the personal observations and feelings of the fact-finder.

In the 2008 en banc decision of Egyptian Goddess v. Swisa, the Federal Circuit abolished the “point of novelty” test that, despite its flaws, had brought some objectivity to the infringement determination. In its place, the Court in Egyptian repeatedly emphasized the need to view the …

Makeup And Made-Up Protection: Unveiling The Need For Stronger Legal Protections Against Makeup Dupes Within The Luxury Beauty Industry, Crystal Couso

St. Thomas Law Review

To strengthen trademark protections for luxury beauty brands against makeup dupes, this Comment proposes amending the Lanham Act to combat the rise of makeup dupes. Part II provides a brief background on trade dress laws and the elements required to establish a claim under the Lanham Act. Part III highlights the current inadequacies of the current trade dress protections afforded by the Lanham Act, including its failure to account for generic product designs and the irrelevance of consumer confusion in makeup dupe cases. Part IV proposes a novel solution to modify the Lanham Act to accommodate the makeup dupe phenomenon. …