Inventions Made for Hire 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 Continue reading →
Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications 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 Continue reading →
Conception and Misconception in Joint Inventorship 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 Continue reading →
Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act 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 Continue reading →
The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right 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 Continue reading →
Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses 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 Continue reading →
Brand Renegades By Jeremy Sheff* A pdf version of this article may be downloaded here. Introduction I. Whence the Renegade? II. The Renegade in Our Midst A. Adoption and Co-Option B. Reality Bites C. Cutting Loose III. The Legal Limits of Social Brands A. Trademark Law’s Expansion B. The Brand Renegade at the Outer Limit C. Drawing a Line Conclusion Continue reading →
Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech By Edward L. Carter* A pdf version of this article may be downloaded here. Introduction I. Scholarly Views on Donaldson v. Beckett II. Alexander Donaldson and the Crusade Against Speech Monopoly III. Donaldson v. Beckett Re-Examined A. Day 1: Friday, February 4, 1774 B. Day 2: Monday, February 7, 1774 C. Day 3: Tuesday, February 8, 1774 D. Day 4: Wednesday, February 9, 1774 E. Days 5, 6 and 7: Tuesday, February 15, 1774; Thursday, February 17, 1774; and Monday, February 21, 1774 1. Was There a Common Law Copyright? 2. Was the Common Law Copyright Lost upon Publication? 3. Did the Statute of Anne Supersede the Common Law Copyright? 4. Was There a Perpetual Common Law Copyright That Authors Could Assign to Printers? 5. Did the Statute of Anne Supersede the Perpetual and Assignable Common Law Copyright? F. Day 8: Tuesday, February 22, 1774 Conclusion Appendix—Summary of Data from Westlaw “Journals and Law Reviews” Database on Donaldson v. Beckett Continue reading →
Caught in the Middle: Reducing the Uncertainty Created by the FDA and the Patent System for Genetic Diagnostic Test Makers By Sharonmoyee Goswami* A pdf version of this article may be downloaded here. Introduction I. Current Regulatory Framework for Genetic Diagnostic Tests and the Dangers of Increased Regulation A. Institutional Frameworks at the FDA B. FDA Shift in Regulating Genetic Diagnostic Tests C. The Three Classes of Devices for FDA Approval D. Choice of Classification Delays Market Entry and Can Be Uncertain E. Historical Expansion of Regulation Has Been Alleviated by Commensurate Expansion in Patent and FDA-Mediated Data Exclusivity II. Why We Need Better Regulation of Genetic Diagnostic Tests A. Molecular Markers That Do Not Correctly Predict the Presence of a Disease Allele B. Mistakes in Genetic Test Interpretation Occur Because of Genetic and Environmental Variation C. Mistakes in Genetic Test Interpretation Occur Because of Unforeseen Interactions between Genes III. Is a Per Se Patentable Subject Matter Rule for Genetic Diagnostic Tests the Solution? A. A Per Se Rule Does Not Fit within the Patentable Subject Matter Framework B. In the Absence of a Per Se Rule, Companies Still Need a Baseline Level of Exclusivity IV. Suggestions for a New Regulatory Regime for Genetic Diagnostic Tests 1. Increase Requirements for Labeling and Genetic Counseling That Keep up with Developing Technology through Monthly Meetings 2. Provide Data-Exclusivity for Class II Tests That Require Additional Clinical Studies 3. Create Mandatory Maximum Times for Class II and Class III Approval Processes or Increase the Scope of Class II Devices to Decrease Overall Approval Times 4. Solicit Complaints Directly from Consumers 5. Require Minimal Regulation of Purely Software-Based Genetic Diagnostic Tests V. Application of Proposed Regulatory Regime to a Challenge for the FDA A. Regulation of Analytical Validity and Classification of the Tests B. Possible Patent Protection and Data Exclusivity Conclusion Continue reading →
Ideas and the Public Domain: Revisiting INS v. AP in the Internet Age By Andrew Beckerman-Rodau* A pdf version of this article may be downloaded here. Introduction I. Property Rights in Intangibles II. Common Law Misappropriation of an Idea or Information A. The Historical Source of the Misappropriation Doctrine B. An Overview of Contemporary Application of the Misappropriation Doctrine C. Continued Viability of Actions for Misappropriation of an Idea or Information III. Critical Review of the Misappropriation Doctrine A. The Problem with the Property Rationale B. Free Riding C. Ruinous Competition IV. Reliance on Existing Tort and Contract Theories Conclusion Continue reading →
