Intellectual Property
MANDATORY INFRINGEMENT
Charles Duan
Abstract In 2005, the Food and Drug Administration required the use of chlorofluorocarbon-free propellants in albuterol inhalers. But 3M held patents on the only U.S.-approved chlorofluorocarbon-free inhaler. The agency’s regulations forced multiple generic albuterol manufacturers to choose between infringing 3M’s patents or exiting the market. This state of affairs was lucrative for 3M, perhaps good […]
Extraterritorial Damages in Copyright Law
Thomas F. Cotter
Abstract A recurring fact pattern in U.S. copyright infringement litigation involves a defendant who makes an unauthorized copy of a copyrighted work in the United States; exports it to another country, where it is used to generate additional copies; and then profits from the use or sale of these copies outside the United States. Under […]
Saving Substantial Similarity
Daryl Lim
Abstract Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin’s signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle’s dispute over computer code all required courts to grapple with this fundamentalanalysis. This Article reveals that today’s […]
Trademark Law & Consumer Safety
David A. Simon
Abstract Trademark law protects consumers and mark owners againsteconomic harm. When consumers are confused about the source of agood or service, this increases consumer search costs or imposesreputational costs on trademark owners. But what happens when apharmacist, confused by two similar drug names, accidentally prescribesestrogen instead of an antidepressant? Trademark law, in such cases, hasadapted […]
Do the Games Never End?
Shubha Ghosh
Abstract Response to Pamela Samuelson, Staking the Boundaries of Software Copyrights in the Shadow of Patents Categories create hours of fun for the legal mind. Is it this? Or is it that? Could it be both? At the end of the day, the best, but nagging, answer might be “None of the above.” Categories are […]
A View of Copyright from the Digital Ground
Andres Sawicki
Abstract Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore Professor Cathay Smith’s Beware the Slender Man: Intellectual Property and Internet Folklore seems at first to fit comfortably within the creativity-without-IP literature, which shows that creative practices can thrive outside of the institutions built up around intellectual property law. […]
Intellectual Property and the End of Work
Camilla A. Hrdy
Abstract The conventional wisdom is that intellectual property (IP) is good for jobs. Indeed, according to legislators and the U.S. patent office, IP “creates jobs.” But this is not quite right. A primary function of IP is to increase the amount of innovation in the economy. Yet a significant subset of the innovations protected by […]
Who Will Speak For The Slender Man?: Dialogism and Dilemmas in Character Copyright
Elizabeth L. Rosenblatt
Abstract Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore Someone, at some time, invented Santa Claus. They did not invent him from whole cloth, of course. They drew on folklore and religious icons, and then got creative. Someone decided he lived in the North Pole; someone else decided he […]
Beware the Slender Man: Intellectual Property and Internet Folklore
Written by: Cathay Y. N. Smith
Abstract Internet folklore is created collaboratively within Internet communities—through memes, blogs, video games, fake news, found footage, creepypastas, art, podcasts, and other digital mediums. The Slender Man mythos is one of the most striking examples of Internet folklore. Slender Man, the tall and faceless monster who preys on children and teenagers, originated on an Internet […]
Teva and the Process of Claim Construction
Written by: Lee Petherbridge & R. Polk Wagner
Abstract In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decision-making in this area. This Article closely […]
Black Box Tinkering: Beyond Disclosure in Algorithmic Enforcement
Written by: Maayan Perel & Niva Elkin-Koren
Abstract The pervasive growth of algorithmic enforcement magnifies current debates regarding the virtues of transparency. Using codes to conduct robust online enforcement not only amplifies the settled problem of magnitude, or “too-much-information,” often associated with present- day disclosures, but it also imposes practical difficulties on relying on transparency as an adequate check for algorithmic enforcement. […]
Sapna Kumar, Regulating Digital Trade
Abstract Under § 337 of the Tariff Act, the International Trade Commission (ITC) has jurisdiction over articles that enter the country and infringe intellectual property rights. Recently, the ITC vastly expanded its powers, asserting jurisdiction over imported digital files that infringe intellectual property rights. This Article examines the limits of the ITC’s authority, arguing that […]
Annemarie Bridy, Internet Payment Blockades
Abstract Internet payment blockades are an attempt to enforce intellectual property rights by “following the money” that flows to online merchants who profit from piracy and counterfeiting. Where corporate copyright and trademark owners failed in the legislature and the judiciary to create binding public law requiring payment processors like MasterCard and Visa to act as […]
Lily Kahng, The Taxation of Intellectual Capital
Intellectual capital—broadly defined to include nonphysical sources of value such as patents and copyrights, computer software, organizational processes, and know-how—has a long history of being undervalued and excluded from measures of economic productivity and wealth. In recent years, however, intellectual capital has finally gained wide recognition as a central driver of economic productivity and growth. […]
Gregory N. Mandel, The Public Perception of Intellectual Property
Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1,700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights ought to […]
Irina D. Manta, The High Cost of Low Sanctions
Low sanctions can initially appear to be a mitigating factor for unjust or inefficient laws, but this perception is likely wrong. This Article argues that low sanctions may have a pernicious effect on the democratic process and on legislative rule making because, as both public choice theory and historical precedent suggest, the laws accompanying these […]
Adam Mossoff, The Trespass Fallacy in Patent Law
The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass […]
The Quantification of the Productive Inefficiencies of Patent Production
Xavier Seuba
Abstract Response to William Hubbard, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency Professor William Hubbard’s article, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency, starts by asking, “Are we underestimating the costs of patent protection?” One reaction to that initial question might be excitement that some researcher has calculated the costs and benefits […]
Marc Edelman, Closing the “Free Speech” Loophole: the Case for Protecting College Athletes’ Publicity Rights in Commercial Video Games
When Electronic Arts Inc. (Electronic Arts) launched its video game series NCAA Football in June 1993, the available technology limited developers to crafting avatars that looked like faceless figurines. Today, however, advancements in digital technology have enabled developers to create “virtual players” that strongly resemble their reallife counterparts. For example, in NCAA Football 12, the […]
William Hubbard, Competitive Patent Law
Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must “out-innovate . . . the rest of the world,”1 and that patent reform is a “critical dimension[]”2 of this innovation agenda. Soon thereafter, Congress enacted the most sweeping […]
Michael Risch, America's First Patents
Courts and commentators vigorously debate early American patent history because of a spotty documentary record. To fill these gaps, scholars have examined the adoption of the Intellectual Property Clause of the Constitution, correspondence, dictionaries, and British and colonial case law. But there is one largely ignored body of information—the content of early patents themselves. While […]
Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era
In the past decade, countries have actively established bilateral, plurilateral, and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era […]
Deven R. Desai, From Trademarks to Brands
The business world has moved from using trademarks—simple symbols identifying products—to brands—rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. […]
Jacob D. Moore, The Forgotten Victim in the Human Gene Patenting Debate: Pharmaceutical Companies
63 Fla. L. Rev. 1277 (2011)| | | NOTE :: Scientific innovation is crucial to the prosperity, security, and health of a nation. During the founding years of the United States, political leaders realized the need for such innovation and created the patent law system 2 as a means of protecting American citizens. The major […]
Charles Short, Guilt by Machine: The Problem of Source Code Discovery in Florida DUI Prosecutions
61 Fla. L. Rev. 177 (2009) | | | | ABSTRACT :: Breath testing results stand at the core of most driving under the influence (DUI) prosecutions. Florida law provides that an individual is guilty of driving under the influence when he drives, or is in actual physical control of a vehicle, while under the […]
Sarah Harding, Perpetual Property
61 Fla. L. Rev. 285 (2009) | | | | INTRODUCTION :: Property interests, unlike contracts, tend to adhere to a limited set of specific forms-the numerus clausus principle. Much scholarship in the past decade has focused on this distinction in an attempt to understand both the nature of and the reasons for the limitation […]
Samuel J. Horovitz, Two Wrongs Don't Negate a Copyright: Don't Make Students Turnitin if You Won't Give it Back
60 Fla. L. Rev. 229 (2008) | | | | INTRODUCTION :: The story goes something like this: There was a particularly difficult college professor notorious for a low grading scale. After years of low grade following low grade, one paper finally earned a B minus, the highest grade ever awarded by this professor. Word […]
Larry Dougherty, Does a Cartel Aim Expressly? Trusting Calder Personal Jurisdiction when Antitrust Goes Global?
60 Fla. L. Rev. 915 (2008) | | | | INTRODUCTION :: Suppose your law firm represents CrabApple, the large, California-based manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. […]
David S. Levine, Secrecy and Unaccountability: Trade Secrets in our Public Infrastructure
59 Fla. L. Rev. 135 (2007) | | | | ABSTRACT :: Trade secrecy-the intellectual property doctrine that allows businesses to keep commercially valuable information secret for a potentially unlimited amount of time- is increasingly intruding in the operation of our public infrastructure, including voting machines, the Internet, and telecommunications. A growing amount of public […]
Jeffrey L. Harrison, Trademark Law and Status Signaling: Tattoos for the Privileged
59 Fla. L. Rev. 195 (2007) | | | | INTRODUCTION :: The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the “functional” quality of […]
Kelly Casey Mullally, Patent Hermeneutics: Form and Substance in Claim Construction
59 Fla. L. Rev. 333 (2007) | | | | ABSTRACT :: The claims section of a patent performs an important public notice function in patent law. The claims inform us of the boundaries delineating the subject matter over which the inventor holds an exclusive right. Methodology for interpreting patent claims has a direct impact […]
Irene Calboli, Trademark Assignment "with Goodwill": A Concept Whose Time Has Gone
57 Fla. L. Rev. 771 (2005) | | | | INTRODUCTION :: Imagine that tomorrow, when you order your morning STARBUCKS Caramel Macchiato, the coffee tastes richer than usual; you then notice a label on the shop door, and on your coffee cup, announcing that a new owner has purchased the mark STARBUCKS and has […]
Michael W. Carroll, The Struggle for Music Copyright
57 Fla. L. Rev. 907 (2005) | | | | INTRODUCTION :: For intellectual property lawyers, the first decade of the twenty-first century is a period of history-in-the-making. This perception is reinforced on a daily basis by rapidly changing digital and biomedical technologies, an increasingly globalized economy, and growing public debate about the appropriate subject […]
Janelle A. Weber, Don't Drink, Don't Smoke, Don't Download: Parents' Liability for their Children's File Sharing
57 Fla. L. Rev. 1163 (2005) | | | | INTRODUCTION :: When Darlene Emanski subscribed to America Online (AOL), she thought she was providing her teenage daughter with a fun and convenient means of researching school projects, communicating with friends, and listening to music now and then. The Central Florida small business owner never […]
Jacqueline Lipton, Information Property: Rights and Responsibilities
56 Fla. L. Rev. 135 (2004) | | | | INTRODUCTION :: Can you own information? If so, what is the theoretical justification for ownership, and precisely what rights does ownership confer? What is the impact of ownership of information and ideas on society and on the public domain? These questions have increasingly absorbed the […]