ERN: Intellectual Property (Topic)最新文献

{"title":"Recent EPO Decisions on Business Method Patents","authors":"Massimo Barbieri","doi":"10.2139/ssrn.2976017","DOIUrl":"https://doi.org/10.2139/ssrn.2976017","url":null,"abstract":"This report examines some recent European Patent Office (EPO) Board of Appeal decisions on business method patents. According to the European Patent Convention (EPC), methods for doing business are not regarded as inventions if they’re claimed “as such” in a patent application. In most cases, EP patent applications on business method patents are rejected for lack of an inventive step and not according to Art. 52 (2) (c) of the European Patent Convention (EPC). A state-of-the-art search in the “technical field” of business methods is also presented.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116095197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University, on the Anti-Monopoly Commission of the State Council's Anti-Monopoly Guidelines against Abuse of Intellectual Property Rights","authors":"Joshua D. Wright, Koren W. Wong-Ervin, D. Ginsburg, Bruce H. Kobayashi","doi":"10.2139/ssrn.2952414","DOIUrl":"https://doi.org/10.2139/ssrn.2952414","url":null,"abstract":"This comment is submitted by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University in response to the Anti-Monopoly Commission of the State Council of the People's Republic of China’s public consultation on its draft Anti-Monopoly Guidelines Against Abuse of Intellectual Property Rights. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze antitrust matters involving intellectual property rights.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132028695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Brief Amicus Curiae of Intellectual Property Professors in Support of Petition for Certiorari in Samsung v. Apple","authors":"Bernard H. Chao","doi":"10.2139/ssrn.3021941","DOIUrl":"https://doi.org/10.2139/ssrn.3021941","url":null,"abstract":"eBay Inc. v. MercExchange, L.L.C, 547 U.S. 388, 394 (2006) held that that courts should apply the traditional four-factor test when deciding whether to issue a permanent injunction to a prevailing patentee. Certiorari should be granted in this case because the Federal Circuit’s decision dilutes the eBay test by allowing its irreparable harm factor to be satisfied when a patentee merely shows “some connection” between the patented feature and demand for the infringing products. Since the existence of “some connection” does not establish any (let alone, irreparable) harm stemming from the infringement, this Court should instruct the Federal Circuit to require actual proof of causation when applying the irreparable harm factor of the eBay test.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115224797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Kind of Rights Are Intellectual Property Rights?","authors":"R. Merges","doi":"10.1093/OXFORDHB/9780198758457.013.8","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198758457.013.8","url":null,"abstract":"Are intellectual property rights (IPRs) really rights? And if so, what kind of rights? Most importantly, what difference does it make that they are rights – what practical import does this carry? These are the questions I take up in this Chapter, which is forthcoming as part of The Oxford Handbook of Intellectual Property Law (Rochelle C. Dreyfuss & Justine Pila, eds., forthcoming 2017). \u0000I begin by clearing up some misunderstandings about legal rights. The primary one is that rights are absolute. A secondary one is that one need do nothing to obtain or exercise a right, and that therefore any legal entitlement that requires affirmative steps to secure cannot be a right. Next I consider a prominent critique of the idea that IP rights are property rights, which holds that they are more akin to government regulation. After that I turn to an enumeration of the details of IP rights, described in the terms laid down by the prominent theorist of legal relations, Wesley Newcomb Hohfeld. \u0000From this I distill the key attributes of property as it applies to IP rights: \u00001. It is ‘good against the world’ – no prior contract or other legal relationship is required to create a duty on the part of third parties to respect the right; \u00002. It defines uses of an asset that are under control of the owner; it demarcates what is ‘in’ and ‘out’ of the owner’s ambit of authority; \u00003. It is broadly transferable; yet the owner retains residual rights over those aspects of the right that are not transferred. In addition, it includes a special form of quasi-transfer power, in that it permits the owner alone to decide whether and when to enforce the right. \u0000Taking up the theme of IP as a (non-absolute) form of property, I then consider three key limits. IPRs are: \u00001. Contingent; they are subject to government processes to acquire or enforce, such as perfection, approval, maintenance, and the like; \u00002. Time-limited; most IP rights have specified terms, and even those that do not will usually lapse at some time; \u00003. Bounded in scope; the class of assets the IP rights cover is subject to boundaries drawn with more or less precision. \u0000None of these limits is enough to disqualify IP from being property. But altogether they impose significant restrictions on the strength or power of an IP right. \u0000After these general points, two special problems then draw my attention: injunctions in IP law and constitutional takings of IP rights. Finally, I conclude with some observations about why, when properly framed, engaging in ‘rights talk’ about IP does not inexorably point to absolutist views. Throughout I emphasize two highly consistent thoughts: IP rights are real rights; but they are limited rights. They dominate some interests but not all, and they are subject to restrictions and limitations that third parties sometimes hold as rights also.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127359268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Safe Harbors and the Evolution of Music Retailing","authors":"T. Beard, George S. Ford, Michael L. Stern","doi":"10.2139/ssrn.2963232","DOIUrl":"https://doi.org/10.2139/ssrn.2963232","url":null,"abstract":"According to the music recording industry, YouTube, one of the largest purveyors of on-demand digital music, evades paying market rates for the use of copyrighted content by exploiting the Digital Millennium Copyright Act’s “safe harbor” provisions. The source of the distortion in licensing negotiation appears to be that at any one time, there may be multiple unauthorized copies of a particular song available notwithstanding compliance with the safe harbors, suggesting that services may essentially be able to offer access to music without paying royalties and still claim safe harbor protection for infringement. The evidence appears to confirm the claim: market-based royalties for subscription-based services are about eight-times larger than that paid by YouTube. An interesting question, it seems to us, is how much revenue the recording industry loses from the distortions caused by the safe harbor provisions? Employing accepted economic modeling techniques, we simulate revenue effects from royalty rate changes on YouTube’s service. Using 2015 data, we find that that a plausible royalty rate increase could produce increased royalty revenues in the U.S. of $650 million to over one billion dollars a year. This is a sizeable effect, and lends credence to the recording industry’s complaints about YouTube’s use of the safe harbor.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130741717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Nagoya to Rio and Back, a Detour Through Brussels. The Protection of Traditional Knowledge and Genetic Resources in the EU","authors":"F. Papadopoulou","doi":"10.2139/ssrn.2924569","DOIUrl":"https://doi.org/10.2139/ssrn.2924569","url":null,"abstract":"The most important contribution for the international regulation and protection of traditional knowledge and genetic resources (TKGR) was made in Rio in 1992 by means of the Convention on Biological Diversity (CBD). The objective of the CBD was to remedy the market failure noted in cases such as that of the Hoodia cactus, the maca plant and the ayahuasca vine. This market failure depends on the fact that the countries where TKGR is found, the countries where traditional knowledge is developed are not the ones to reap the benefits of their application and use in research and commercial products. While the CBD constitutes the first international attempt to bring a certain institutional balance in the CBD market, it had to overcome a very important barrier, namely that of the strong and at the time of its entry into force, still growing stronger, Intellectual Property Rights (IPRs) regime. The need to relate to the Intellectual Property (IP) system and to the extent possible, use it in order to achieve the Convention’s objectives has considerably influenced the final text of the CBD, as well as its implementation. It is also the existence of the IP system that has formed the subsequent international negotiations and the way contracting states (and non-contracting for that matter), have positioned themselves in the post-CBD negotiations.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131204491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Economics of Ownership, Access and Trade in Digital Data","authors":"Néstor Duch-Brown, B. Martens, Frank Mueller‐Langer","doi":"10.2139/ssrn.2914144","DOIUrl":"https://doi.org/10.2139/ssrn.2914144","url":null,"abstract":"Despite the rapidly growing volume and economic importance of data in the digital economy, the legal framework for data ownership, access and trade remains incompletely defined in the EU and elsewhere. De facto data ownership dominates and often leads to fragmentation or anti-commons problems in data. Combined with limited access and trade, this inhibits the realisation of the full economic benefits of non-rival data. It may slow down innovation and affect the efficiency of data markets. We examine three potential sources of data market failures: externalities related to economies of scope in data, strategic behaviour of data owners and transaction costs in data exchanges. We link the legal debate on data ownership with relevant branches of the economics literature, including intellectual property rights economics, the commons and anti-commons literature, models of trade under the Arrow Information Paradox and multi-sided markets. Economists are inclined to think that well-defined private property rights are a necessary condition for an efficient resource allocation. The question in this paper is to what extent this view holds for non-rival data. We show that the allocation of data ownership or residual control rights matters, not only for private benefits but also for social welfare. The outcomes of bargaining over data ownership and access rights do not necessarily maximize social welfare. Can regulators intervene to improve these outcomes? Would a better specification of legal ownership rights or introducing access provisions to improve efficiency and reduce data market failures? There are no easy answers to these largely empirical questions. We offer no policy solutions yet and more research is required to bring economics up to speed with these questions.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124270482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Simple Dynamical Model of an Industrial Laboratory Incorporating Knowledge Stock","authors":"D. Mitra, Qiong Wang","doi":"10.2139/ssrn.2902941","DOIUrl":"https://doi.org/10.2139/ssrn.2902941","url":null,"abstract":"A model of an industrial laboratory is presented and analyzed. It is a highly simplified abstraction, and consists of a network with two stages in series, Research (R) and Development (D). Ideas and prototypes are incubated in the R stage, possibly patented and documented, and brought to a sufficiently stable level for transfer to teams of professional developers in the D stage. Revenue is generated from sale and licensing of patents at both stages, and the sale of products/solutions that are outputs of the D stage. The model is dynamic, evolving with time, which is discrete. \u0000 \u0000In each time period the parent corporation gives the managers of the industrial laboratory a fixed, constant amount of money to invest in the two stages. The investments determine the capacities of the stages based on linear unit costs. A novel feature of the model is \"knowledge stocks\" for the stages, which represent the accumulated know-how from practicing research and development activities. Obsolescence and replenishment are responsible for their dynamic evolution, with replenishments owing to investments. The impact of the knowledge stocks is on the unit costs, which decrease by factors that are polynomials of the stocks. The memory in knowledge stocks make current investment decisions have long term impact on costs and profits. Three modes of profit maximizing decision-making are investigated, namely, myopic, long term average and an optimal control-based strategy that combines short and long term profits via discounting. The time evolutions are studied as nonlinear dynamical systems. For instance, we find, in the case of myopic profit maximizations, the existence of multiple equilibria and the phenomenon of entrapment in suboptimal regimes. Numerical results illustrate the main features of the model.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132550422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intellectual Property in Creative Industries: The Economic Perspective","authors":"Christian Handke","doi":"10.2139/ssrn.2893066","DOIUrl":"https://doi.org/10.2139/ssrn.2893066","url":null,"abstract":"This chapter discusses essential elements of an economic analysis regarding the socio-economic implications of intellectual property (IP). The aim is to help scholars from various disciplines interested in the economic reasoning behind IP for creative industries to recognize logically consistent and well-rounded assessments or to develop them themselves. The chapter covers: (1) a general introduction to the economic perspective on IP; (2) the application of economic theory to address the implications of unauthorized use and copyright protection; (3) empirical evidence on the effects of copyright protection on rights holder revenues and innovation as well as alternatives to copyright to help finance creativity; (4) key topics in the relatively extensive economic literature on patents and how it may inform research on IP in creative industries. It also (5) points out new issues regarding IP in creative industries in the context of digitization.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"160 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121006578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Interface between Data Protection and IP law: The Case of Trade Secrets and Database Sui Generis Right in Marketing Operations, and the Ownership of Raw Data in Big Data Analysis","authors":"F. Banterle","doi":"10.1007/978-3-662-57646-5_16","DOIUrl":"https://doi.org/10.1007/978-3-662-57646-5_16","url":null,"abstract":"","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115737415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}