Our Spring 2023 Issue—Volume 12, Issue 2—focuses on novel landscapes in intellectual property law.
First, Professor Robin Feldman challenges the limits of the Fifth Amendment’s Compensation Clause in the context of patents. Specifically, Feldman asks whether patents should be considered “private property” for the purposes of the Compensation Clause. After offering the first comprehensive analysis of decades’ worth of scholarship and judicial interpretations, Feldman concludes that patents do not fall within the Compensation Clause.
Second, Alexandre Arnaud offers a new perspective on the Geographic Indications (GIs) debate. Focusing on the longstanding disparity between US and EU implementation and enforcement of GIs, Arnaud proposes a practical solution to the impasse facing signatories of the 2006 Wine and Trade Agreement. Arnaud suggests a revised bilateral agreement between the US and the EU that would convince the US of the benefits of a stronger GI system in the US, outlining routes for the EU to pursue towards this goal.
Third, Stacey Chuvaieva analyzes the scope of rights conferred by NFTs and how the new arena of digital property is revolutionizing conceptions of intellectual property. Chuvaieva offers two case studies of NFTs in the gaming and art industries, demonstrating two contrasting views of NFTs’ reception and utility. The author analyzes this disparity not in terms of ownership per se, but rather as a matter of transferability. By emphasizing transferability of NFTs, Chuvaieva argues that, despite differences in industry contexts, forms of digital ownership can confer similar rights analogous to their tangible counterparts. The article concludes with a series of proposed reforms to bring NFT rights in line with levels of protection associated with traditional forms of property.
Finally, Ananya Pillutla offers a note arguing that courts’ concern over patent preemption should be refocused. Rather than addressing the issue of preemption across several statutory provisions, courts should analyze preemption from the perspective of the nonobviousness requirement. To justify this approach, Pillutla notes that it has always been possible for courts to address preemption under the nonobviousness requirement because laws of nature, natural phenomena, and abstract ideas can fall into the prior art of a patent. As a result of recent case law on the subject, the nonobviousness requirement is a more effective approach to addressing preemption.
You may view and download a PDF of the complete issue here.
Jacob Golan, Ph.D.
NYU Journal of Intellectual Property & Entertainment Law