Intellectual Property Law Commons^™

Economics Of The Independent Invention Defense Under Incomplete Information, Murat C. Mungan

Scholarly Publications

Patents lead to ex post deadweight loss arising from a noncompetitive market structure for the invention. Many have argued that introducing independent invention as a defense (IID) to patent infringement can increase social welfare by decreasing such deadweight loss at the price of a modest decrease in the number of inventions. This paper considers the effects of IID in a setting where R&D firms have incomplete information about their rivals. Four main results follow under incomplete information: (i) fewer things are invented under an IID regime; (ii) IID’s effects on welfare are ambiguous; (iii) IID is more likely to increase …

The Rise And Decline Of The Intellectual Property Powers, Peter K. Yu

Campbell Law Review

Since its reopening to foreign trade in the late 1990s, China has been the poster child of intellectual property piracy and counterfeiting. Virtually every year, the Office of the United States Trade Representative (USTR) lists China on its watch list or priority watch list. The country’s piracy and counterfeiting problems have also been frequently mentioned in connection with international intellectual property enforcement initiatives, such as the highly controversial Anti-Counterfeiting Trade Agreement (ACTA) and the equally problematic domestic legislative proposals for heightened copyright enforcement. In a recent report, the International Trade Commission estimated that “firms in the U.S. [intellectual property]–intensive economy …

Developing And Diffusing Green Technologies: The Impact Of Intellectual Property Rights And Their Justification, Jonathan M.W.W. Chu

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Counterfeits, Copying And Class, Ann Bartow

Law Faculty Scholarship

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

Stolen Valor & The First Amendment: Does Trademark Infringement Law Leave Congress An Opening?, Susan Richey, John M. Greabe

Law Faculty Scholarship

This paper elaborates an argument the authors presented in an amicus brief filed in United States v. Alvarez, the "Stolen Valor" case. The paper contends that Congress could constitutionally protect the Congressional Medal of Honor as a collective membership mark by means of trademark infringement legislation.

Patent Landscape Of Influenza A Virus Prophylactic Vaccines And Related Technologies, Jon R. Cavicchi, Stanley P. Kowalski, David L. Pflugh, Jeremy Barton, Jeffrey Janovetz, John Schroeder

Law Faculty Scholarship

Executive Summary: This report focuses on patent landscape analysis of technologies related to prophylactic vaccines targeting pandemic strains of influenza. These technologies include methods of formulating vaccine, methods of producing of viruses or viral subunits, the composition of complete vaccines, and other technologies that have the potential to aid in a global response to this pathogen. The purpose of this patent landscape study was to search, identify, and categorize patent documents that are relevant to the development of vaccines that can efficiently promote the development of protective immunity against pandemic influenza virus strains.

The search strategy used keywords which the …

Managing Intellectual Property To Foster Agricultural Development, Sara Boettiger, Robert Potter, Stanley P. Kowalski

Law Faculty Scholarship

Over the past decades, consideration of IPRs has become increasingly important in many areas of agricultural development, including foreign direct investment, technology transfer, trade, investment in innovation, access to genetic resources, and the protection of traditional knowledge. The widening role of IPRs in governing the ownership of—and access to—innovation, information, and knowledge makes them particularly critical in ensuring that developing countries benefit from the introduction of new technologies that could radically alter the welfare of the poor. Failing to improve IPR policies and practices to support the needs of developing countries will eliminate significant development opportunities. The discussion in this …

Patent Reform And Best Mode: A Signal To The Patent Office Or A Step Toward Elimination?, Ryan G. Vacca

Law Faculty Scholarship

On September 16, 2011, President Obama signed the America Invents Act (AIA), the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law's best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. …

Review Essay, Property Outlaws: How Squatters, Pirates, And Protesters Improve The Law Of Ownership By Eduardo Moisés Peñalver And Sonia K. Katyal, Ann Bartow

Law Faculty Scholarship

[Excerpt] "This book challenges the notion that rigidly fostering stability in the private ownership of property is the only appropriate goal of the legal system. The authors assert that dynamic sociopolitical responses to civil disobedience by lawbreakers sometimes propel beneficial legal reforms in a wide array of contexts. Property outlaws with clean hands and good hearts, they argue, can productively draw attention to the need to reform ossified property laws. In the words sometimes attributed to the historical rock star of successful civil disobedience Mohandas Ghandi: “First they ignore you, then they ridicule you, then they fight you, and then …

Patent Law’S Audience, Mark D. Janis, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent scope strive to provide notice of the boundaries of the patent right to anyone whose activities might approach those boundaries, including, in theory, any member of the general public. But the rules of patent scope are practically incomprehensible to the general public. In this Article, we argue that rules of patent law should be designed …

Should Foreign Patent Law Matter?, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

In the last twenty years, there have been considerable changes in United States patent law. Most of these changes have been somewhat top-down in nature, meaning that the impetus for the changes came from our international treaty obligations or from an interest in harmonizing our laws with those of our trading partners. Consequently, domestic patent law is increasingly a mix of domestic and international considerations. Concurrently, international borders have become more porous as a result of increased manufacturing of goods to be imported into the United States as well as technological innovations such as the Internet. These global changes have …

Territoriality And Tangibility After Transocean, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

Patent law is generally considered the most territorial forms of intellectual property. The extension of infringement to include “offers to sell” inventions opened the door to potential extraterritorial expansion of U.S. patent law. In Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., the U.S. Court of Appeals walked through the door by concluding (1) that the location of the ultimate sale, not the location of the offer, determines whether patent infringement occurred and (2) that there can be infringement by selling or offering to sell an invention based solely on diagrams and schematics. The one-two punch of these …

The Potential Extraterritorial Consequences Of Akamai, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

In Akamai Techs., Inc. v. Limelight Networks, Inc., the Federal Circuit redefined 35 U.S.C. § 271(b) to no longer require that a single entity perform all of the steps of a patented method for there to be active inducement of infringement. By doing so, the court divorced § 271(b) from the definitions of infringement found in § 271(a) .

This severance creates a potential problem: unlike § 271(a), § 271(b) does not contain any territorial limitations. The acts of direct infringement defined by § 271(a) must occur within the United States, but there is no such restriction in § 271(b) …

Session Iv: Technology And The Future Of Privacy, 29 J. Marshall J. Computer & Info. L. 379 (2012), David E. Sorkin, Ann Bartow, Robert S. Gurwin, Doris E. Long

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Notes On Exchanging Information Without Intellectual Property, Wendy J. Gordon, Michael J. Burstein

Scholarship Chronologically

Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a ''.fundamental paradox" that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …

Actual Knowledge Of Direct Patent Infringement Isrequired For Induced Infringement: Global-Techappliances, Inc. V. Seb S.A., James G. Dilmore

Duquesne Law Review

No abstract provided.

Environmental Initiative And The Role Of The Uspto’S Green Technology Pilot Program, Sarah M. Wong

Marquette Intellectual Property Law Review

This Comment will address the environmental problems that confront the U.S. and the steps that the government has taken to solve them. Specifically, research funding and patent protection have provided the green industry an incentive to increase research and development of green technology. One of the more recent programs to help improve the patent protection of green technology, the Green Technology Pilot Program, accelerates the status of green technology through the United States Patent and Trademark Office (USPTO) patenting process. This Comment will suggest that the Program become a permanent feature within the USPTO and that it be expanded to …

A State-By-State Analysis Of Inevitable Disclosure: A Need For Uniformity And A Workable Standard, Ryan M. Wiesner

Marquette Intellectual Property Law Review

Even after the majority of the states adopted the Uniform Trade Secrets Act, there is a lack of uniformity in their applications of trade secret laws. This lack of uniformity is directly contrary to section 8 of the UTSA, which calls for the uniform application of trade secret laws by the states adopting the Act. Consequently, there is a need for uniformity in the states’ applications of trade secret law, more specifically, the inevitable disclosure doctrine.

This Comment will provide a basic introduction to trade secrets, the inevitable disclosure doctrine, including a discussion of the Seventh Circuit’s decision in Pepsico …

A Rose By Any Other Statute Would Smell As Sweet: Patent Protection Of Ornamental Plants, Catherine Anne Barrett

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Fear And Loathing In Trademark Enforcement, Jeremy N. Sheff

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.