Inventions Made for Hire

November 26, 2012 By Joshua L. Simmons in JIPEL Vol. 2 - No. 1 Tags: Patent

Joshua L. Simmons* A pdf version of this article may be downloaded here.

Introduction

I. IP and the Employer-Employee Relationship

A. Copyright Law

B. Patent Law

1. Employer Use and Shop Rights

2. Commissioned Invention and the Hired-to-Invent Doctrine

3. Employer Inventions and Employee Improvements

II. Development of the Work Made for Hire Doctrine

A. Antebellum

B. The Nineteenth Century Postbellum

C. Corporate Ownership and Codification

III. Employment in Patent Law

A. Antebellum

B. The Nineteenth Century Postbellum

IV. Is Patent Law Stuck in the Past?

Conclusion

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Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications

November 25, 2012 By Aaron B. Rabinowitz in JIPEL Vol. 2 - No. 1 Tags: Criminal Law

By Aaron B. Rabinowitz* A pdf version of this article may be downloaded here.

I. Introduction

A. Background

B. Overview of Findings

II. Federal Sentencing Practice and Booker

A. Pre-Booker Sentencing Procedures and Practice

B. Post-Booker Sentencing Procedures and Practice

III. Analysis of Sentencing Trends for Intellectual Property Crimes

A. Methodology

B. Findings and Analysis

1. Growth in Intellectual Property Offenders Sentenced

2. Proportion of Non-Guidelines Sentences Imposed on Intellectual Property Offenders

3. Frequency of Post-Booker Deviation from Sentencing Guidelines

4. Proportion of Cases With Downward Deviations

5. Judicial Actors Responsible for Downward Deviations

i. Government-Sponsored Downward Deviations

ii. Judge-Initiated Downward Deviations

6. Downward Deviations Based on Judicial Application of Booker

IV. Implications of Post-Booker Sentencing Trends

A. Prospective Causes for Trends in Intellectual Property Sentences

B. Implications For The Sentencing Guidelines

V. Conclusion

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Conception and Misconception in Joint Inventorship

November 24, 2012 By Aaron X. Fellmeth in JIPEL Vol. 2 - No. 1 Tags: Patent

Aaron X. Fellmeth* A pdf version of this article may be downloaded here.

Introduction

I. The Law of Invention and Inventorship

A. The Patent Law Concept of Invention

1. The Role of Conception

2. The Role of the Claims

B. Inventorship and Joint Inventorship

1. The Evolved Doctrine

2. The Distorting Effect of Claims Fixation

C. The Strong Presumption of Validity in Inventorship Analysis

II. Relinking Inventorship Analysis to Technology Policy

A. Legislative History of the 1984 Patent Law Amendments Act

B. Reconstructing Inventorship

1. Equity and Strategic Nonjoinder

2. Restoring Incentives for Collaborative Research

Conclusion

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Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act

November 23, 2012 By Sean M. Flaim in JIPEL Vol. 2 - No. 1 Tags: Copyright

Sean M. Flaim* A pdf version of this article may be downloaded here.

Introduction

I. The Copyright Alert System

A. A Brief History of Online Infringement

B. The Development of the Graduated Response System

C. U.S. Graduated Response: The Copyright Alert System

1. Creation of the Center for Copyright Information

2. Identifying Infringing Content

3. Copyright Alert Program

4. Due Process Under the Copyright Alert System

II. Antitrust

A. Brief Overview of Antitrust Law

B. The Relationship Between Antitrust Law and Copyright

C. Private Enforcement and Group Boycotts

1. Early Boycott Cases – Per Se Liability

2. Per Se Liability to Rule of Reason

III. Application of Antitrust Law to the Copyright Alert System

A. What Is the Restraint at Issue?

1. Horizontal, Vertical, or Hybrid Agreement?

2. Concerted Refusal to Deal and/or Group Boycott

B. Do the Parties Possess Market Power?

1. Product Market

2. Geographic Market

C. What Are the Anticompetitive Aspects of the Copyright Alert System?

1. Consumer Welfare

2. Governance Provisions

D. What Are the Pro-Competitive Justifications Offered?

1. Societal Costs of Copyright Infringement

2. Network Congestion

3. Copyright Alert System Benefits Consumers

4. Section 512(i) of the Digital Millennium Copyright Act

E. The Copyright Alert System Fails the Rule of Reason

IV. Recommendations for Improvement

A. Congressional Action

B. The Department of Justice and the Federal Trade Commission

Conclusion

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The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right

November 22, 2012 By Katelyn N. Andrews in JIPEL Vol. 2 - No. 1 Tags: Copyright, Fashion

By Katelyn N. Andrews* A pdf version of this article may be downloaded here.

Introduction

I. Shortcomings of the Economic Analysis

A. The First-Mover Advantage

B. Imperfect Copies

II. Fashion as Art

A. Fashion Imitating Art

1. The Fashion Designer as Artist

2. Appropriation, Collaboration, and Inspiration

3. Museums’ and Runway Shows’ Display of Fashion as Art

B. Art Imitating Fashion

C. Is Fashion Art?

III. Moral Rights in Fashion Design

Conclusion

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Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses

November 21, 2012 By Ryan Kairalla in JIPEL Vol. 2 - No. 1 Tags: Copyright, Fair Use

By Ryan Kairalla* A pdf version of this article may be downloaded here.

Introduction

I. Overview of Relevant Copyright Law and Fair Use

A. Copyright Law Generally

B. Fair Use

C. Work Parody, Satire, and the Fair Use Factors

1. The Work Parody/Satire Distinction

2. The Distinction and Fair Use

II. Author Parodies

A. Author Parodies in the Federal Courts

III. Privileging Author Parodies Would Correct a Market Failure in Licensing Similar to the One Inherent in Work Parody

IV. Privileging Author Parodies Is Proper Under The Fair Use Factors Due To Their Similarity To Work Parodies (and Dissimilarity To Satires)

A. The Purpose and Character of the Use

B. The Nature of the Copyrighted Work

C. Amount and Substantiality of the Portion Used

D. Effect on Potential Market for or Value of the Copyrighted Work

Conclusion

Appendix

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