Intellectual Property Law Commons^™

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

Patents V. Statutory Exclusivities In Biological Pharmaceuticals - Do We Really Need Both, Yaniv Heled

Michigan Telecommunications & Technology Law Review

Over the past decade or so, the United States has been the arena of a boisterous debate regarding the creation of a new regulatory framework for the approval of generic versions of biologics-based pharmaceutical products (also known as "biological products" and "biologics")--an important and increasingly growing class of drugs. The basic purpose of such a framework is to create a fast and less-costly route to FDA approval for biologics that would be similar or identical to already-approved biological products--typically ones that are sold on the market at monopoly rates--thereby allowing cheaper versions of such medicines to enter the market. One …

Res Or Rules - Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris

Michigan Telecommunications & Technology Law Review

The Article proceeds as follows. Part I reviews the basics of patent claiming, the traditional view of claims as real property deeds, and why uncertainty as to the boundaries of those deeds is considered undesirable. Part II critiques the analogy between real property deeds and patent claims, highlighting in particular the requisite novelty and conceptual nature of the patent res, the differences between the purposes of the patent system and real property regimes, and the effect of these different purposes on the expected predictability of patent boundaries. Part III then changes the analogy from patent claims as property deeds to …

Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin

Michigan Telecommunications & Technology Law Review

2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …

Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel

Michigan Telecommunications & Technology Law Review

The first sale doctrine, codified at 17 U.S.C. § 109, grants the owners of a copy of a copyrighted work the right to sell, rent, or lease that copy without permission from the copyright owner. This doctrine, first endorsed by the Supreme Court in Bobbs-Merrill Co. v. Straus, was established at a time when the owner of a good necessarily had to forego possession in order to sell or lease the item to another.[...] The changes in technology and industry over the past two decades threaten to upend this balance. In today's digital world, an owner of a copy of …

An Explicit Policy Lever For Patent Scope, Anna B. Laakmann

Michigan Telecommunications & Technology Law Review

Since its inception in 1982, the Federal Circuit has declined to take an overt role in setting patent policy. Dan Burk and Mark Lemley have observed that the court instead implicitly engineers patent policy through selective application of its patentability rules, which operate as "policy levers." Recent decisions on the patentability of diagnostic and therapeutic methods illustrate a significant problem with this approach. By maintaining a façade of adjudicative rule formalism while tacitly manipulating its rules to approximate policy goals, the court perpetuates empirical uncertainty about the patent law's practical effects. This Article proposes that the Federal Circuit use the …

Burying, Robert Brendan Taylor

Michigan Telecommunications & Technology Law Review

When applying for a patent, applicants must provide the examiner with all known material prior art. Those who fail to do so can be charged with inequitable conduct. But applicants can still effectively hide material prior art references by submitting them along with large quantities of immaterial prior art to the examiner. This deceptive practice, known as "burying," is generally not considered inequitable conduct. This Essay summarizes the current legal landscape concerning burying, discusses the costs associated with the practice, and suggests ways to deter and punish those who do it.

Deconstructing Shanzhai - China's Copycat Counterculture: Catch Me If You Can, William Hennessey

Campbell Law Review

What is a “Chinese copy”? And why does China have a reputation as the quintessential “copycat culture,” where nimble knock-offs of virtually any article are in the daily news and respect for and protection of the intellectual property owned by others is widely perceived to be either weak or non-existent? Are copying and creativity diametrical opposites, two sides of the same coin, or unrelated to one other? Are wildly successful imitators uncreative? Does the charge that “the Chinese are the masters of copying” reflect something unique about China’s traditions and culture? Do China’s cultural traditions (particularly Confucianism) foster copying or …

Comments: Modest Proposals For A Complex Problem: Patent Misuse And Incremental Changes To The Hatch-Waxman Act As Solutions To The Problem Of Reverse Payment Settlements, Alyssa L. Brown

University of Baltimore Law Review

No abstract provided.

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article sets out to analyze both intellectual property laws and tax systems as applied to software. The article also analyzes software within the intellectual property doctrinal framework, and examines both the federal and state tax systems governing software.

Made In America: A Comparative Analysis Of Copyright Law Protections For Fashion Design In Asia And The United States, Alexandra Mackey

American University Business Law Review

No abstract provided.

A Thousand Tiny Pieces: The Federal Circuit's Fractured 'Myriad' Ruling, Lessons To Be Learned, And The Way Forward, Jonathan Stroud

Celebrating WCL Student Authors

The Supreme Court granted, vacated, and remanded the infamous Myriad gene isolation patentability case to the Court of Appeals for the Federal Circuit (CAFC) in light of the recent Prometheus decision, which held 9-0 that a certain diagnostic method was invalid subject matter because it was an abstract idea merely modified by other obvious steps. This Essay argues that Myriad should be affirmed again by the Federal Circuit, particularly in light of Prometheus, in order to inject certainty, clarity, and consistency into the § 101 patentable subject matter jurisprudence

"Hostile Learning Environment:" Developing Student Speech Regulation By Applying The Hostile Work Environment Analysis To Cyberbullying, Carla Diblasio

Journal of Law, Technology, & the Internet

No abstract provided.

Antitrust And Patent License Agreements: A New Look At The Grantback Clause In High Technology Markets, John M. Murray

Journal of Law, Technology, & the Internet

No abstract provided.

Do Robomemos Dream Of Electric Nouns?: A Search For The Soul Of Legal Writing, Ian Gallacher

Journal of Law, Technology, & the Internet

No abstract provided.

The Sound Of Silence: The Legality Of The American "Kill Switch" Bill, Deborah Beth Medows

Journal of Law, Technology, & the Internet

No abstract provided.

How The Traditional Property Rights Model Informs The Television Broadcasting Spectrum Rationalization Challenge, J. Armand Musey

UC Law SF Communications and Entertainment Journal

This paper examines the role zoning rights and eminent domain may play in the Federal Communication Commission's ("FCC") challenge of reallocating underutilized television broadcast spectrum for use in significantly higher value mobile broadband applications. The government must find a way to reallocate the spectrum in an economically and legally efficient manner, balancing the interests of the politically powerful broadcasters and those of society as a whole. From a strictly legal perspective, the broadcasters have a relatively weak claim to property rights. However, the government has indicated it seeks an incentivized voluntary return of spectrum by the broadcasters, suggesting the government …

The Transformative Tribute: How Mash-Up Music Constitutes Fair Use Of Copyrights, Vera Golosker

UC Law SF Communications and Entertainment Journal

The music industry faces copyright protection issues in light of the transformative digital sampling trend, which has carved out a new genre: mash-up. Without obtaining licensing agreements, creators of mash-up music use parts of copyrighted songs as the ingredients for a fusion of sounds that arguably amounts to more creative value than the sum of its parts. In confronting the legality of mash-up music, courts and legislators must strike a balance between securing original artists' interest and promoting new frontiers of expression. This article presents a background of digital sampling, applies the fair use defense to mash-up music, and proposes …

Online Business Reviews And The Public Figure Doctrine: An Advertising-Based Standard, Jenna Morton

UC Law SF Communications and Entertainment Journal

Online reviews exert a powerful influence of consumers, who rely on the reviews to choose restaurants, barbers, doctors, and many other businesses. Businesses also rely on the reviews as an important form of advertisement. False reviews thus harm both businesses and consumers. Businesses that are harmed by false online reviews can bring a defamation action against the reviewer. However, the current legal standard is unclear as applied to businesses, as it looks to whether an individual is a "public figure." This note weighs the costs and benefits of three possible legal standards for businesses bringing defamation actions: (1) a bright …

Of Guilds And Men: Copyright Workarounds In The Cinematographic Industry, Adriane Porcin

UC Law SF Communications and Entertainment Journal

The motion picture industry utilizes a varied collection of more or less formal mechanisms for dealing with the collective nature of audiovisual works, ranging from collective bargaining to legal presumptions. What these instances of copyright workarounds have in common is that they are all about circumventing traditional notions of authorship (the right to be deemed the author of a work) and ownership (the right to exert control over a work). When considered from an international perspective, the cinematographic industry is fertile ground for an exploration of such mechanisms.

After a recitation of the Berne Convention, this paper will proceed to …