Areas Of Intellectual Property Law Research Articles

A Fairness-Based Approach to Economic Rights

The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are pro-hibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.

Skills in the area of digital safety as a key component of digital literacy among teachers

The goal of the research was to assess the level of Digital Literacy (DL) among teachers. The study was diagnostic in order to show DL in six selected key areas: the ergonomics of using ICT, assessing the credibility of information, secure online communication, maintaining anonymity in the digital world, safe logging-in, and intellectual property. DL was measured using a knowledge and competence test. The study was conducted in Poland in 2017/2018 among 701 primary school teachers (primary being the second stage of education). Based on the data collected, we have noticed the following: DL is a heterogeneous concept; the respondents possess the lowest level of knowledge in the area of intellectual property law and know the most about ergonomics; gender does not determine the level of knowledge and competencies in the group. Furthermore, the Dunning-Kruger effect is noticeable among the teachers, in the context of evaluation of DL related to digital safety. We also need to emphasise that for teachers, DL is one of the key protective factors in digital safety, viewed holistically, in schools. Thus, diagnosing and facilitating the development of DL has become one of the key challenges faced by schools today.

Naked Price and Trade Secret Overreach

Trade secret has drifted from a quiet backwater doctrine to a pervasive force in intellectual property. As always, the risk of distortion is great when a legal arena is developing and expanding rapidly. Nowhere do the theoretical tensions of trade secret law appear in such stark relief as in the modern pharmaceutical debates, where the heart of the theoretical question involves whether pricing is a proper subject for trade secrecy claims. We aim to bring trade secret into greater harmony with broad concepts that reach across all intellectual property regimes. As with other areas of intellectual property law, trade secret law is not a mere contest of private commercial interests. Rather, it embeds substantial dedication to the public interest, reflecting utilitarian balancing of key societal interests. In this context, we develop the concept of “thin” trade secret, looking to the analogous concepts in other intellectual property regimes. Such approaches embody the recogniztion that intellectual property rights are not solid monoliths, presenting an impenetrable wall through which no party but the rights holder may pass. Rather, they are brilliantly nimble and subtle systems, deftly threading their way among various societal goals. This article offers the potential of anchoring trade secret more firmly to its theoretical base, as well as bringing trade secret closer to the family of other intellectual property regimes. Although squabbling, chaotic, and somewhat dispersed, all members of this time-honored family can learn from each other, sharing their battle-worn wisdom with the newest, young upstart.

The role of national intellectual property laws in promoting innovation, scientific and technological development

This paper examines the role which intellectual property rights can play in stimulating innovation for sustainable development. It provides an overview of the international intellectual property regime and its relevance to innovation, technological and scientific development. It considers the role of national intellectual property laws in the context of innovation by focusing on a number of key areas, including the protection of traditional knowledge and genetic resources, and the diffusion of environmentally sound technologies. The paper highlights areas of intellectual property law and system reform and strengthening that may be a focus for Commonwealth member countries.

The Wrong of Publicity

The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. The time has come to take a hard look at the right of publicity, what it is meant to protect, and what we, as a country, should do with it. The right of publicity has long enjoyed protection under common law as a privacy Tort. Misappropriation of name or likeness has been the cause of action under which those whose right of publicity has been violated. Misappropriation has generally had three elements that must be satisfied to successfully bring a claim. One must show that 1. their name or likeness 2. has been appropriated, or used, 3. for another’s benefit. These elements apply to anyone, not just to celebrities, and do not explicitly require a commercial benefit. However, the focus of most right of publicity cases is on celebrities and performers, and it is on these types of cases that this argument focuses. People lacking notoriety generally have remedies in common tort privacy law or in State privacy laws. It is from this basic tort framework that the body of right of publicity law has grown.

Mired in Confusion: Nominative Fair Use in Trademark Law and Freedom of Expression

Trademark law, like other areas of intellectual property law, frequently conflicts with First Amendment interests in various ways. One particularly critical intersection between trademark and free expression is the nominative fair use doctrine, which was created to ameliorate this conflict to some degree. This article explores the history of nominative fair use and argues that the test is inadequate to the task of protecting First Amendment values within trademark law. The article then analyzes an arguably better approach, the Rogers test, and argues that courts should look to Rogers as a superior means of preserving expressive values in trademark doctrine.

Professorss Letter in Support of Patent Reform Legislation

This open letter to Congress, signed by 61 professors who teach and write in the area of intellectual property law and policy, supports ongoing efforts to pass patent reform legislation. The letter explains how high litigation costs and a widespread lack of transparency in the patent system make abusive patent enforcement possible and, accordingly, makes six legislative recommendations that if enacted will help reduce the cost of patent litigation and expose abusive practices without degrading inventors’ ability to protect genuine, valuable innovations.

Invalidating Human Gene Patenting: The U.S. Supreme Court Rules in Association for Molecular Pathology v. Myriad Genetics

In its June 2013 ruling in the Association for Molecular Pathology v. Myriad Genetics (1), the U.S. Supreme Court held that DNA fragments are naturally occurring phenomena that are ineligible for patenting under Title 35, Section 101 of U.S. patent law, regardless of their isolation from the rest of the human genome. This landmark decision clarifies an important area of intellectual property law and deviates from prior positions of the U.S. Patent and Trademark Office on new plant breeds. The ruling immediately invalidates many breast and ovarian gene patents (BRAC1 and BRAC2) held by Myriad Genetics as well as roughly 4000 other genetic patents now held in the United States. The decision could have a profound impact on health care economics, innovation, and patient care across medical subspecialties worldwide, including neurosurgery. The decision highlights the conflicting interests patent law aims to advance: promoting medical innovation by maximizing personal incentives, while maximizing public access to its benefits. The classic argument supporting genetic patenting has been that companies will not invest in genetic technologies if they do not have protections in place to recoup their substantial investments. In some respects, Myriad Genetics can be viewed as a successful example of this model. BRAC1 and BRAC2 mutation testing by Myriad Genetics has benefited thousands of women in the United States who are at high risk for developing breast or ovarian cancer, and the investors in these technologies have been rewarded. However, this model also has prevented competition from other companies, researchers, and health care providers, likely thwarting further testing innovation and quality improvements. Opponents of genetic patents, including James Watson, the codiscoverer of the double helix structure of DNA and a founding member of the Human Genome Project, believe permitting patents on genes blocks innovation. They believe that this practice has resulted in “hundreds, if not thousands, of individual obstacles to developing and commercializing” new assays. Testifying in the Myriad Genetics case, Watson stated that the practice is unnecessary because “the international effort was proceeding on schedule without the need to file patent applications.” More fundamentally, he argued that patenting genes is morally at odds

You Can’t Go Home Again: The Righthaven Cases and Copyright Trolling on the Internet

In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.”1 The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll and smashed him to bits, providing safe passage for him and his smaller companions. The goats easily reached the field and ate heartily, but not without cost: they soon ate so much that they were “scarce able to walk home again; and if the fat hasn’t fallen off them, why they’re still fat.”2 This ancient folktale provides an apt metaphor for a group of recent copyright infringement cases. A copyright “troll” company called Righthaven became known as the first copyright troll when it filed infringement claims against websites and bloggers on behalf of newspaper publishers. At first Righthaven successfully overwhelmed its targets, which agreed to pay a small fee to make the lawsuit go away. Once the more formidable adversary of the Electronic Freedom Foundation entered the fray, however, Righthaven met a similar fate as that of its Norwegian predecessor. But like the goats which reached their goal only to pay the price of never being able to return home, the champions of a free Internet lost an opportunity to reaffirm the protections they so ardently seek. Part I of this Note traces the ideological origins of Righthaven from trolling practices in a sister area of intellectual property law, patent law, to analogous practices in copyright. Part II examines the particular forms of trolling that Righthaven employed to protect newspaper articles and the court system’s reaction to the company’s practices. Part III argues that the Righthaven decisions may have won the battle against one copyright trolling campaign but leave unresolved important issues of jurisdiction, the scope of fair use exemptions to copyright law

Geographical Indications, Biodiversity and Traditional Knowledge: Obligations and Opportunities for the Kingdom of Saudi Arabia

Abstract This article examines the Kingdom of Saudi Arabia’s legal obligations in one area of intellectual property law, namely, geographical indications (GI). It considers the opportunities for improving the existing legal framework from both a domestic and an international perspective. After an introduction, Section 2 presents a survey of the existing domestic and international laws pertaining to the protection of GIs. Section 3 outlines the relationship between GIs, biodiversity and traditional knowledge. Section 4 summarizes some of the latest developments and points of debate regarding increased protection of GIs. Finally, Section 5 puts forward several recommendations for improving the protection of GIs in the Kingdom of Saudi Arabia.

Iqbal-ing Seagate: Plausibility Pleading of Willful Patent Infringement

“Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.” Practically speaking, pleadings are the necessary gateway to any civil action and unlock the doors to discovery. In general, a complaint should set forth the basic facts known to the plaintiff and serves to put defendants on notice of the allegations and resulting harm that the plaintiff seeks to remedy. However, ascertaining the depth of the harm and defendants’ specific injurious conduct frequently requires extensive discovery procedures. In the interest of serving judicial economy and avoiding frivolous litigation, these discovery procedures are generally only available once a complainant has sufficiently pled facts upon which he has shown that he is entitled to relief. In 2009, the Supreme Court in Ashcroft v. Iqbal raised the bar for what must be pled to survive defendants’ motions to dismiss and to begin the discovery process. The Court abandoned the “no set of facts” language that prevailed as the judicial interpretation of Federal Rule of Civil Procedure 8(a)(2) for half a century, and elevated the standard to one where the pleadings must “state a claim to relief that is plausible on its face.” Just two years earlier, in In re Seagate Technology, LLC, the Court of Appeals for the Federal Circuit similarly abandoned its own well-established negligence standard for proving willful patent infringement. Relying on the Supreme Court’s latest interpretation of “willful,” the Federal Circuit elevated the threshold of willfulness to a level of “objective recklessness.”This Note argues that when taken together, Iqbal and Seagate will raise the bar for sufficiently pleading willful patent infringement beyond any attainable level. Part II describes the Supreme Court’s recent decisions that heighten the standard for Rule 8(a)(2) pleadings and the Federal Circuit’s shift from a negligence standard to a recklessness standard for proving willful patent infringement. Part III provides a review of the plausibility-standard language and suggests three mechanisms rooted in the Federal Rules of Civil Procedure that patentee–plaintiffs can employ to circumvent the stringent threshold to survive defendants’ motions to dismiss. Part IV evaluates the new standard for willful patent infringement by comparing it to standards for bad-faith infractions in other areas of intellectual property law. Finally, Part IV also contemplates whether the courts should desert willfulness as the hallmark indicium for increased damages in favor of other bad-faith characteristics of the defendant or conduct surrounding the infringement.

Article 53(b) EPC: A Challenge to the Novartis Theory of European Patent History

The authoritative (Novartis/transgenic plant systems) interpretation of the Article 53(b) EPC exclusion from European patentability of plant and animal varieties, and essentially biological processes for the creation of plants and animals, is considered, and its significance for the trend of EPO jurisprudence and legitimacy of the EC Biotechnology Patenting Directive noted. The Enlarged Board of Appeal's justification for that interpretation in Novartis with reference to the exclusion's legislative history is challenged, and an alternative theory of that history proposed, based on a thorough analysis of the unpublished travaux préparatoires for the Strasbourg and European Patent Conventions. In addition to elucidating the framers' (actual and presumed) intent with respect to the Article 53(b) exclusion, that analysis offers an insight into post‐war legal unification methodology and its continued impact on one of the most contentious and technical areas of intellectual property law.

Developments (and Non-Developments) in the Harmonisation of EU Intellectual Property Law

AbstractThis chapter begins by considering the challenges posed to the harmonisation of intellectual property law at the European level by the very different ways in which the law of intellectual property is viewed across Europe. It then goes on to review the various global and historical initiatives in the arena of intellectual property law harmonisation before running through the different areas of intellectual property law—trade marks, designs, copyright and patents—and examining the ways in which each of these has been dealt with at the European level, both by the European Union and by other Europe-wide bodies. In effect, the way in which intellectual property law has been addressed by the European Union represents a microcosm of the various possible approaches to harmonisation. As regards the prospect of future harmonisation of intellectual property law by the European Union, it is hoped that a wide and wise view of the issues will be taken, in order that public confidence in the Community’s intellectual property regime may be both justified and strengthened.

Developments (and Non-Developments) in the Harmonisation of EU Intellectual Property Law

Abstract This chapter begins by considering the challenges posed to the harmonisation of intellectual property law at the European level by the very different ways in which the law of intellectual property is viewed across Europe. It then goes on to review the various global and historical initiatives in the arena of intellectual property law harmonisation before running through the different areas of intellectual property law—trade marks, designs, copyright and patents—and examining the ways in which each of these has been dealt with at the European level, both by the European Union and by other Europe-wide bodies. In effect, the way in which intellectual property law has been addressed by the European Union represents a microcosm of the various possible approaches to harmonisation. As regards the prospect of future harmonisation of intellectual property law by the European Union, it is hoped that a wide and wise view of the issues will be taken, in order that public confidence in the Community’s intellectual property regime may be both justified and strengthened.

Political Economies of Harmonization: Database Protection and Information Patents

Laws concerning intellectual property have been part and parcel of the international harmonization of commercial law for over a century. With the 1994 TRIPS Agreement, international standards for protecting intellectual property were firmly woven into the larger structure of global economic integration. Since then, there has been continued, rapid development of international legal norms for protecting intellectual property. This paper, however, concerns two areas of intellectual property law that have shown themselves resistant to harmonization: extra-copyright protection of databases and the broader field of information patents. With database protection, the EU moved decisively to create this kind of intellectual property in 1996; half a decade later the US has no such law and protection of databases is uncertain. With information patents,the US provides robust patent protection across the whole range of information patents, while Europe has expressly declined to embrace business method patents and patenting of software inventions remains uncertain. For each of these two areas, this paper offers descriptive lessons about the political realities of intellectual property policy; a normative account of when intellectual property policy should be changed; and, finally, an analysis of how future policy developments in these two areas of intellectual property can and should be held to that higher normative standard.

Protecting Electronic, Biologic Intellectual Property: It's the Electronic Sequence, Stupid!

In recent years, it has not been uncommon to hear a researcher from a biotechnology company or university state: “We patented gene X.” What does this statement mean? Assuming the researcher is referring to a composition patent for gene X, then, under American patent laws, the patent holder has acquired the right to exclude others from making, using, selling or importing the chemical composition of gene X. Most modern gene patents cover both the nucleic acid composition (DNA) of gene X and the encoded polypeptide (protein) product. No one disputes that a patent holder with a claim to the composition of gene X can enforce his rights against others that make, use, sell or import gene X. But what if someone makes, uses, sells, or imports the electronic sequence information of gene X, in the form of an electronic gene sequence? In this case, the composition patent offers little or no protection. Is there alternative protection under current American intellectual property law? This paper begins by comparing and contrasting electronic gene sequence information with traditional biologic or chemical matter. It then analyzes non-patent areas of intellectual property law, looking for alternative protection. The next section focuses on patent law and its possibilities or limitations for gene sequence protection. The paper concludes that congressional action may be necessary to fill in the intellectual property gaps for electronic sequence information.

Fairness, Efficiency, and Insider Trading: Deconstructing the Coin of the Realm in the Information Age

Whether and how the federal securities laws should restrict insider trading is one of the most hotly debated topics in the securities law literature. Paradoxically, both the theoretical analysis and the legal rules concerning insider trading remain extraordinarily vague and ill-formed. What is the special character of insider trading that leads to this apparently irresolvable puzzle? In this Article, I argue that there is, in fact, nothing special about insider trading that creates this dilemma, but rather there is something special about the nature of information itself. Accordingly, this theoretical dilemma is not limited to insider trading regulation, but rather pervades all areas of intellectual property law. In this Article, I situate insider trading regulation within the larger body of intellectual property law by discussing three potential allocations of the property right in valuable inside information. First, inside information could be treated as a public resource, meaning that a person in possession of inside information could not legally exploit that advantage for personal profit. Such a regime would forbid some or all insider trading by forcing the disclosure to the marketplace of inside information prior to trading. I argue that regulators should reject this alternative because, despite it's proponents' tendency to justify the rule in terms of fairness, this proposal is unlikely to foster fairness in any meaningful way. Alternatively, the property right in valuable inside information could belong to issuers, as the producers of such information. I argue that regulators should reject this alternative because, despite its proponents? tendency to frame their arguments in terms of promoting informational efficiency, a legal regime treating inside information as the property of the issuer is unlikely to further that goal. In fact, such proposals assume an affirmative answer to a question that is fiercely debated in other areas of intellectual property law: does creating a property right in information producers incentivize additional production to the extent necessary to offset the social costs of excluding others from use of the information? Finally, the property right in valuable inside information could reside with outsider traders (traders who possess inside information, but are neither insiders nor constructive insiders of the issuer). I argue that regulators should pursue this alternative because, although there is no need to encourage issuers to create valuable inside information, the need to encourage the dissemination of such information to the marketplace has been recognized for many years. Accordingly, I propose in this Article a system of federal securities regulation that would permit trading by corporate outsiders who did not receive their information in a tip from an insider or constructive insider. Such a system, I argue, provides the hope of filling in the gaps left by the current disclose or abstain system, by encouraging the reflection of material information in stock market price without disclosure of the actual inside information. At the same time, this proposal avoids the perverse incentives and negative impacts on market efficiency attendant in a system that permits insider trading by corporate employees.

Intellectual Property Protection in Hong Kong and the People’s Republic Of China

This note considers the legal approaches adopted by the authorities in Hong Kong (’HK’) and the People’s Republic of China (’PRC’) to protect intellectual property rights. It is not intended to detail legislation exhaustively since readers can always refer to the statutes themselves. Rather, the note examines the rationales of the two approaches and the possible directions the law might take in the future. Accordingly, the discussion will be confined conveniently to the three traditional areas of intellectual property law: copyright, trademark and patent.

Protecting Intellectual Property in Russia

OVERVIEW: In the year since the fall of Communism, Russia has revised its patent, trademark and computer software law to meet generally-accepted international standards. Copyright and trade secret legislation still falls short of international standards, but should be revised by 1994. Companies selling or developing technology in Russia need to comply with the registration formalities of Russian legislation or risk losing their parent and trademark rights. Furthermore, they must ensure that all their Russian employees sign written contracts assigning intellectual property rights and agreeing to respect trade secrets. With its great natural resources, wealth of scientific talent, and improving legislation, Russia is promising, both as a market for and a source of new technology. No country has the combination of large numbers of brilliant scientists and low salaries that Russia has today. This combination makes attractive the idea of investing in high-technology projects in Russia, where a large research team and its laboratory can be hired for the price of a single researcher in the United States, Germany or Japan. Although coordination of efforts at a distance is a problem, most Russian scientists know English and have access to quick and reliable electronic mail communication. Russia also can be a major market for advanced technology. Despite current economic difficulties, it remains one of the world's largest producers of industrial goods. Companies developing new technologies must take steps now to protect that technology under Russian intellectual property law or risk losing the Russian market to competitors. Companies considering starting advanced technology projects in Russia, or marketing their technology there, are probably aware that Soviet law, as it existed in the late 1980s, did not provide adequate protection for intellectual property. Some types of intellectual property were not protected at all (e.g., computer programs, trade secrets), or were protected at too low a level to provide necessary incentives (inventions, copyrightable works). Major improvements were made in Soviet intellectual property law in 1991, but the law still fell short of world standards. When Russia attained full sovereignty with the dissolution of the Soviet Union, intellectual property protection unexpectedly achieved high priority among law-making activities. Intellectual property legislation was a key element of plans for transition to a market economy. Furthermore, by moving to world standards of intellectual property protection, Russia could show its good faith to prospective international trading partners. Legislation recently adopted by Russia's Parliament will, on paper at least, bring Russia up fully to international standards of protection of patents, computer software, computer chip designs, and trademarks. However, to take full advantage of this legislation, foreign business partners will need to comply with the formalities of Russian law and to negotiate appropriate contracts with their Russian partners. The following discussion considers six areas of intellectual property law: Patent law; protection of integrated circuit designs; protection of computer programs and databases; trademark law; copyright law; trade secret law. Legislation to modernize the first four of these areas was passed in the spring of 1992, but was vetoed by President Yeltsin on the basis of technical objections. (The laws failed to take into account the rights of the constituent units within the Russian Federation.) Parliament amended the legislation to meet President Yeltsin's objections and passed it again in September 1992. Modernization of copyright and trade secret law is on the legislative agenda, but will probably not occur until sometime in 1993 or 1994. CHANGES IN PATENT LAW The new patent legislation introduces two important changes in patent law. First, it expands the coverage of patent law to cover such important areas as pharmaceuticals and products of genetic engineering. …