Intellectual Property Law Commons^™

Intellectual Property And The Protection Of Indigenous Culture In The United States And New Zealand: An Effective Solution For Indigenous Communities?, Dinisha L. Fernando

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Reverse Payments, Perverse Incentives, Murat C. Mungan

Faculty Scholarship

Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, …

Trademark Morality, Mark Bartholomew

Journal Articles

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Akron Law Faculty Publications

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Street Art: An Analysis Under U.S. Intellectual Property Law And Intellectual Property's Negative Space Theory, Cathay Y. N. Smith

Faculty Law Review Articles

Street art, in its original and purest form, is artwork created without authorization, usually illegally, on either private or public property. Until recently, street art has been considered a social nuisance and is almost universally illegal, but it is now slowly becoming a “hot commodity” garnering press and social media attention. In recent years, local communities are increasingly beginning to value street art in their neighborhoods, and the art world has also caught on to the street art trend. As a result, street art is being copied and reprinted on clothing, posters, commercial items, and exhibited and sold in auction …

Copyright Freeconomics, John M. Newman

Vanderbilt Law Review

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster's rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate among scholars and stakeholders regarding the proper scope and role of copyright law-but this ongoing debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering legitimate content at a price of $0.00. This sea change has ushered in an era …

Innovation, Inequality, And The Commercialization Of Academic Research, Walter Valdivia

Brookings Scholar Lecture Series

Patent policy is rarely debated in relation to its distributive consequences. In particular, the Bayh-Dole Act has been discussed in terms of its effects on the pace of innovation or the organization of science. However, this lecture re-assesses this policy from the perspective of a fair distribution of resources, both those committed to and those created by research-based innovation. Specifically, examining the management of university’s intellectual property, Valdivia will identify the institutional arrangements that reinforce a very asymmetric distribution of political and economic resources among universities and then characterize subtle but important links between these inequalities and the social distribution …

The Intellectual Property System Of The U.S. And Its Discontents

Stanley H. Mervis Lecture

No abstract provided.

Patent Portfolios As Securities, Michael Risch

Working Paper Series

Companies of all types are buying, selling, and licensing patents - not just one patent, but many patents bundled into large portfolios. A primary problem with these transactions is that the market is illiquid: parties cannot identify holders of relevant portfolios, they cannot agree on the value of the portfolio, and the specter of litigation taints every negotiation.

This article presents a new way to improve market formation and integrity by proposing that patent portfolios be treated as securities. If patent portfolio transactions are treated like stock transactions, sellers steering clear of fraud laws may be forced to disclose information …

Telran Communications, Ltd. V. Charlton, Ltd., Zvi Zylbertal, Isaac Amit, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: The Respondent and Cross-Petitioner (hereinafter: Charlton) acquired the exclusive right to broadcast the summer 2006 FIFA World Cup in the State of Israel. The Petitioner and Cross-Respondent (hereinafter: Telran) sold decryption cards (hereinafter: cards) that enabled the decryption of encrypted satellite broadcasts of foreign broadcast networks. The foreign networks broadcasted the World Cup games by encrypted satellite broadcast. The broadcasts …

Open Innovation In Plant Genetic Resources For Food And Agriculture, Chidi Oguamanam

Chicago-Kent Journal of Intellectual Property

Contemporary global order for the promotion of innovation exaggerates the role of intellectual property (IP) as a closed proprietary model of knowledge production and protection. Partly as a boomerang effect of that order or partly as a coincidence of the phenomenal rise in the information and communication technologies or both, there has been increased gravitation toward open, collaborative, shared, communal and interdependent models of innovation. This trend is typified by the rise of open software movement and cognate endeavours. The article attempts to transpose the open innovation dynamic to the context of plant genetic resources for food and agriculture (PGFA); …

Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak

Chicago-Kent Journal of Intellectual Property

Significant recent judicial and legislative developments have changed the way litigants and counsel need to plan for and litigate inequitable conduct allegations. Exergen and Therasense have heightened the standards for pleading and proving inequitable conduct, respectively, and Congress has expanded the patentee’s post-grant options for preempting or defeating inequitable conduct challenges. Without a doubt, the inequitable conduct litigation landscape has changed. Careful, thorough consideration of all of these developments and their implications is a must for any litigant or counsel faced with or considering asserting a charge of inequitable conduct. This paper discusses these significant recent inequitable conduct-related developments and …

Not All Patents Are Created Equal: Bias Against Predictable Arts Patents In The Post-Ksr Landscape, David Tseng

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Next Generation Copyright Misuse, Rebecca Sundin

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Recent Decisions Provide Some Clarity On How Courts And Government Agencies Will Likely Resolve Issues Involving Standard-Essential Patents, Steven M. Amundson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Rebuttable Presumption Of Public Interest In Protecting The Public Health --The Necessity For Denying Injunctive Relief In Medically-Related Patent Infringement Cases After Ebay V. Mercexchange, Lance Wyatt

Chicago-Kent Journal of Intellectual Property

The public’s interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court’s holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies. Unfortunately, this has not been the course that …

Hijacking Shared Heritage: Cultural Artifacts And Intellectual Property Rights, Amy Hackney Blackwell, Christopher William Blackwell

Chicago-Kent Journal of Intellectual Property

No abstract provided.

All Together Now: The Family Of Marks Doctrine In The Era Of Apple, Inc., Austin Berger

Chicago-Kent Journal of Intellectual Property

While a significant doctrine within common law trademark, the family of marks doctrine has not been utilized by as many dominant corporations within the fifty years since its creation as one might expect. This may be because the doctrine and its analysis remains rather opaque with little substantive legal research devoted to its history and framework and with a pastiche of case law that, on first blush, fails to signal a clear, uniform approach among the circuits. The doctrine itself, however, has been a deft tool in the hands of certain corporations who have used it to protect the prized …

Phoenix Rising? On The Fall And Potential New Rise Of State Trademark Rights, Charles Mcmanis, Henry Biggs

Chicago-Kent Journal of Intellectual Property

This article addresses the historical interplay of federal, state and common law trademark rights as they relate to the scope of geographic protection. The article looks closely at the narrow context where federal trademark law may arguably provide for state trademark law to prevail. The article notes, however, that the specific state trademark language necessary for that state trademark right to prevail has slowly vanished from most state trademark statutes. Yet while the door has seemed to be closing in this area, a relatively recent case, National Ass'n for Healthcare Communications, Inc. v. Central Arkansas Area Agency on Aging, Inc, …

Patent Litigation Attorneys' Fees: Shifting From Status To Conduct, Daniel Roth

Chicago-Kent Journal of Intellectual Property

Abusive patent assertion results in deadweight losses to society. Faced with the high cost of patent litigation, companies often settle for an amount equal to a fraction of the cost of defending a patent infringement suit. This allows the patent owner to extract settlements from many individuals without the risk of invalidation before a federal court. Shifting attorneys' fees to the prevailing party is a remedy courts award in exceptional cases to deter patent owners from bringing unreasonable claims of infringement and to return defendants to the position they were in prior to litigation. Current fee-shifting proposals target patent assertion …