Intellectual Property Law Commons^™

The Federal Circuit As A Federal Court, Paul Gugliuzza

Faculty Scholarship

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court’s power in four interinstitutional relationships: the court’s federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

Implementing The E.U. Unified Patent Court: Lessons From The Federal Circuit, Robert D. Swanson

Brigham Young University International Law & Management Review

No abstract provided.

What Privacy Is For, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection …

Rebalancing Intellectual Property In The Information Society: The Human Rights Approach, Ana Eduarda Santos

Cornell Law School Inter-University Graduate Student Conference Papers

In today's Information Society, one of the most salient paradoxes is the fact that the law of intellectual property has been systematically used in ways that erect barriers around the very building blocks that lie at its foundation. As intellectual property law stretches to cover all kinds of information-intensive goods at an atomic level, access to raw data and educational materials is hindered, creative inputs shrink and scientific research becomes harder, costlier and, in some cases, virtually impossible.

The set of limitations and exceptions offered by intellectual property laws around the world tends to be either too frail or too …

Five Oft-Repeated Questions About China's Recent Rise As A Patent Power, Peter K. Yu

Faculty Scholarship

Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.4% to 16,406, earning China the fourth spot, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had …

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

U.S. Supreme Court Briefs

No abstract provided.

The Information Privacy Law Of Web Applications And Cloud Computing, Sebastian Zimmeck

Santa Clara High Technology Law Journal

This article surveys and evaluates the privacy law of web applications and cloud computing. Cloud services, and web applications in particular, are subject to many different privacy law requirements. While these requirements are often perceived as illfitting, they can be interpreted to provide a structurally sound and coherent privacy regime. The applicable body of law can be separated into two tiers: the primary privacy law and the secondary privacy law. The primary privacy law is created by the providers and users of cloud services through privacy contracts, especially, privacy policies. The secondary privacy law, contained, for example, in statutes and …

Copyright Subject Matter And A "Light" For Designers' Rights, Matteo Mancinella

Santa Clara High Technology Law Journal

Copyright protection in the fashion industry is currently the focus of intense debate in the United States, particularly centered on the utility of special legislation to protect designs from knock-offs. This article focuses on the importance of copyright protection for fashion designers, and the obstacles to copyright currently faced by fashion designers.

What is the legal rationale for not providing copyright protection for fashion design? Why are designers’ creations not granted copyright protection? Unlike authors and musicians, fashion designers can only enjoy protection afforded by trademark for logos. Clothing is considered a “useful article”—not eligible for copyright protection—unless it is …

Open Source Software Compliance: The Devil Is Not So Black As He Is Painted, Maxim V. Tsotsorin

Santa Clara High Technology Law Journal

Many commercial enterprises effectively utilize open source code when developing various software products—virtually every software developer uses open source in his or her work. But along with economic benefits and production efficiency come significant legal risks, exacerbated by the wide availability of OSS components. While some licenses are permissive and demand very little, others require any work based on, or even containing only parts of an open source code, to be distributed only as OSS.

Most commercial enterprises and software developers recognize potential business and legal risks and implement some sort of compliance mechanism as a best practice. But what …

Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang

Santa Clara High Technology Law Journal

Active metabolite patents have been instrumental for brandname pharmaceutical companies to maintain their exclusivity even after the drug patents expire. This strategy obstructs market entry of generic medicine and reduces affordable drugs. The authors review jurisprudence from the United States, Europe, India, and Taiwan in search for practical solutions to confront this problem. Given the unique pharmacological value that active metabolites may possess, patent protection for those purified or synthesized in vitro should be preserved, but for those produced by metabolism should be declined. Except India, most countries under investigation comport with this dichotomy. Their jurisprudence may be subsumed into …

Data Wars: How Superseding Forsham V. Harris Impacts The Federal Grant Award Process, Elizabeth Adelman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Fitness For Review Of Complex Biotechnology Issues In Patent Litigation: Technical Claim Interpretation, Megan E. Lyman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Jurisdictional Challenges In The United States Government’S Move To Cloud Computing Technology, Sasha Segall

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean

Fordham Intellectual Property, Media and Entertainment Law Journal

Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes. For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers. …

The Parthenon Sculptures And Cultural Justice, Derek Fincham

Fordham Intellectual Property, Media and Entertainment Law Journal

From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally. Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects …

Access Denied: How Social Media Accounts Fall Outside The Scope Of Intellectual Property Law And Into The Realm Of The Computer Fraud And Abuse Act, Tiffany Miao

Fordham Intellectual Property, Media and Entertainment Law Journal

This note addresses the challenge of applying intellectual property laws to determining ownership rights over social media accounts, specifically in the employer and employee context. This note suggests that IP regimes, namely Trademark, Copyright,and Trade Secrets, fail to provide an adequate framework for determining such ownership rights. Instead, this note proposes that the Computer Fraud and Abuse Act serves as a more appropriate legal framework.

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Freud On The Court: Re-Interpreting Sexting & Child Pornography Laws, Matthew H. Birkhold

Fordham Intellectual Property, Media and Entertainment Law Journal

Although many developments in child pornography law are troubling, perhaps the most disconcerting is the growing number of cases in which children are being charged with violating child pornography laws for engaging in “sexting,” or sending sexually explicit photographs via cellular phones or over the Internet. Although the law implicitly considers children the victims of child pornography and the photographer and audience as punishable perpetrators, this logic is challenged by sexting cases. Yet in many instances, children who take and send “lascivious” pictures of themselves have been charged with violating the very law designed to protect them from the harms …

The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey

Fordham Intellectual Property, Media and Entertainment Law Journal

Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is …

Patent Exhaustion And The Federal Circuit’S Deviant Conditional Sale Doctrine: Bowman V. Monsanto, Adam Garmezy

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.