Intellectual Property Law Commons^™

Joint Infringement: Circumventing The Patent System Through “Collaborative” Infringement, Vincent Ferraro

Student Works

No abstract provided.

Ip Injury And The Institutions Of Patent Law, Paul R. Gugliuzza

UF Law Faculty Publications

This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, …

Better Mistakes In Patent Law, Andres Sawicki

Articles

This Article analyzes patent mistakes-that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones.

Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others.

This Article compares the costs of making mistakes of different types, at …

I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett

Law Student Publications

First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need …

Patent Law's Audience, Mark D. Janis, Timothy R. Holbrook

Articles by Maurer Faculty

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 …

Tuning The Obviousness Inquiry After Ksr, Mark D. Janis

Articles by Maurer Faculty

One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …

Functionality In Design Protection Systems, Mark D. Janis, Jason J. Du Mont

Articles by Maurer Faculty

In comparison to functionality doctrine in trade dress cases, scholars have paid relatively little attention to the role of functionality doctrine in design protection systems such as the U.S. design patent system and the EU Community Design regime. Yet functionality considerations potentially affect many validity and scope determinations in the design protection area. In this Article, we critically evaluate judicial application of the functionality doctrine in design protection systems, focusing on the U.S. design patent and EU design protection regimes. We argue that the doctrine as applied in these settings is too often aimless and inconsistent. Some simple doctrinal refinements …

International Trademark Protection And Global Public Health: A Just-Compensation Regime For Expropriations And Regulatory Takings, Sam Foster Halabi

Catholic University Law Review

No abstract provided.

Vernor V. Autodesk: Power To The . . . Producers?, Elizabeth Hayes

IP Theory

No abstract provided.

The Criminalization Of The Theft Of Trade Secrets: An Analysis Of The Economic Espionage Act, Nicola Searle

IP Theory

No abstract provided.

Openness, Intellectual Property And Standardization In The European Ict Sector, Carl Mair

IP Theory

No abstract provided.

A Thousand Tiny Pieces: The Federal Circuit’S Fractured Myriad Ruling, Lessons To Be Learned, And The Way Forward, Jonathan R. K. Stroud

IP Theory

No abstract provided.

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Robin Feldman

Faculty Scholarship

Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

Copy Game For High Score: The First Video Game Lawsuit, 20 J. Intell. Prop. L. 1 (2012), William K. Ford

UIC Law Open Access Faculty Scholarship

Commentators and industry historians generally agree that the multi-billion dollar video game industry began forty years ago in November 1972 with Atari's release of Pong. Pong is among the simplest of video games: a version of ping pong or tennis requiring little more to play than a ball, two paddles, a scoring indicator, and a couple of memorable sounds. While it was not the first video game, Pong was the first video game hit. With unauthorized copying of a successful product occurring, it is not surprising that a lawsuit resulted in the fall of 1973, one that predates the more …

International And Canadian Law Rules Applicable To Cyber Attacks By State And Non-State Actors, Matthew E. Castel

Canadian Journal of Law and Technology

This essay, which contains a broad ranging overview of several important issues raised by the recent number of cyber attacks in Canada and elsewhere, begins with a definition of cyberspace and cyber war. It is followed by a brief survey of some cyber attacks that have occurred in Canada and elsewhere in recent years. The first part addresses the question whether present rules of international law applicable to armed attacks using kinetic weapons apply to the wide notion of cyber attacks by a state actor against the government and critical civilian infrastructures of another state and concludes that they do. …

Amendment Of Articles 8, 9, 10, 21 And 78 Of The International Code Of Zoological Nomenclature To Expand And Refine Methods Of Publication, International Commission On Zoological Nomenclature

Copyright, Fair Use, Scholarly Communication, etc.

The International Commission on Zoological Nomenclature has voted in favor of a revised version of the amendment to the International Code of Zoological Nomenclature that was proposed in 2008. The purpose of the amendment is to expand and refine the methods of publication allowed by the Code, particularly in relation to electronic publication. The amendment establishes an Official Register of Zoological Nomenclature (with ZooBank as its online version), allows electronic publication after 2011 under certain conditions, and disallows publication on optical discs after 2012. The requirements for electronic publications are that the work be registered in ZooBank before it is …

Bouchat V. Baltimore Ravens Ltd. Partnership, John Imhoff

NYLS Law Review

No abstract provided.

Orphan Works As Grist For The Data Mill, Matthew Sag

Faculty Articles

The phenomenon of library digitization in general, and the digitization of so-called “orphan works” in particular, raises many important copyright law questions. However, as this Article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization.

The distinction between expressive and non-expressive works is already well recognized in copyright law as the gatekeeper to copyright protection—novels are protected by copyright, while telephone books and other uncreative compilations of data are not. The same distinction should generally be made in relation to potential acts of infringement. Preserving the functional force of the idea-expression distinction in the …