ERN: Intellectual Property (Topic)最新文献

{"title":"Inventor Sued for Infringing His Own Patent. You Won't Believe What Happened Next","authors":"Mark A. Lemley","doi":"10.2139/SSRN.2878054","DOIUrl":"https://doi.org/10.2139/SSRN.2878054","url":null,"abstract":"The Supreme Court and the Federal Circuit have repeatedly emphasized the public interest in testing the validity of patents, weeding out patents that should not have been issued. But there is one important group of people the law systematically prevents from challenging bad patents. Curiously, it is the very group patent law is supposed to support: inventors themselves. The century-old doctrine of assignor estoppel precludes inventors who file patent applications from later challenging the validity or enforceability of the patents they receive. The stated rationale for assignor estoppel is that it would be unfair to allow the inventor to benefit from obtaining a patent and later change her tune and attack the patent when it benefits her to do so. The Supreme Court has traditionally disfavored the doctrine, reading it narrowly. But the Federal Circuit has expanded the doctrine in a variety of dimensions, and applied it even when the benefit to the inventor is illusory. Further, the doctrine misunderstands the role of inventor-employees in the modern world. More important, the expansive modern form of assignor estoppel interferes substantially with employee mobility. Inventors as a class are put under burdens that we apply to no other employee. If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer. The result is a sort of partial noncompete clause, one imposed without even the fiction of agreement and one that binds anyone the inventor comes in contact with after leaving the job. Abundant evidence suggests that noncompetes in general retard innovation and economic growth, and several states prohibit them outright, while all others limit them. But assignor estoppel is a federal law doctrine that overrides those state choices.It is time to rethink the doctrine of assignor estoppel. I describe the doctrine, its rationale, and how it has expanded dramatically in the past 25 years. I argue that the doctrine is out of touch with the realities of both modern inventing and modern patent law, and that it interferes with both the invalidation of bad patents and the goal of employee mobility. Should the Supreme Court take up the doctrine, it is unlikely to survive in its current form. Rather, it should – and will – return to its much more limited roots.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130995089","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":"Exhaustion v. Non-Exhaustion — Deciphering the Federal Circuit's Lexmark Decision and Its Implication on Technology Transactions","authors":"Jiangze Bian","doi":"10.2139/SSRN.2822339","DOIUrl":"https://doi.org/10.2139/SSRN.2822339","url":null,"abstract":"On February 12, 2016, the United States Court of Appeals for the Federal Circuit issued its en banc (where a case is heard before all the judges of a court) decision Lexmark International, Inc. v. Impression Products, Inc., which confirmed that, despite recent decisions of the United States Supreme Court supporting exhaustion of intellectual property rights after the initial sale, the Federal Circuit’s patent exhaustion jurisprudence enumerated in its prior rulings, remains good law. This long-awaited decision has a significant impact on licensees and licensors and acquirers and sellers of intellectual property rights and creates traps for the unwary when structuring and negotiating technology transactions. This article intends to reconcile the holdings of the Lexmark decision and prior Supreme Court cases, taking into account the overarching legislative framework, and provide guidance on how to draft license, distribution, services or sales agreements to avoid unintended exhaustion or non-exhaustion of involved intellectual property rights.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"170 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127552458","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":"Technology Transfer and North–South","authors":"M. Davies","doi":"10.1111/roie.12206","DOIUrl":"https://doi.org/10.1111/roie.12206","url":null,"abstract":"Costless technology transfer is a standard assumption in the international trade literature, however, by some estimates the average technology transfer cost is nearly 20% of total project costs. This analysis examines the conditions under which the advanced country gains when the transfer of technology from the advanced North to the less advanced South incurs resource costs. Results are derived for the effect on production, wages, prices and welfare of lower transmission and absorption costs, and productivity and population shocks. The framework is extended to examine the implications of an improvement in the enforcement of international intellectual property rights.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117026497","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 Licence Agreement in View of the New Legislation in the Republic of Kosovo","authors":"Jahë Sahiti, Nexhat Jashari","doi":"10.2139/ssrn.2799254","DOIUrl":"https://doi.org/10.2139/ssrn.2799254","url":null,"abstract":"Industrial property rights such as patents, industrial example, the model, and know-how are, first and foremost, dedicated to the economic exploitation.The inventor, who protects his invention by patent, and the holder of other rights of industrial property, has the possibility to use this right economically, in order to enable the legal circulation of the rights from the industrial property, which is realized through the instruments of the law of contract – licence agreement (a contract for the licence).Law on Obligational Relationships adopted in Kosovo in 2012, which is an applicable law in Kosovo until the adoption of the new law, regulates issues related to the license agreement.Patent law, adopted by the Assembly of Kosovo, represents a basis, which will be enriched in the future from the business and judicial practice, and this legal vacuum, regarding the licence, will be completed.These two laws represent the basic legal framework for the licence agreement and as such are treated in this paper.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134024013","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":"Facilitating Competition by Remedial Regulation","authors":"Kristelia A. García","doi":"10.15779/Z38NZ8H","DOIUrl":"https://doi.org/10.15779/Z38NZ8H","url":null,"abstract":"In music licensing, powerful music publishers have begun — for the first time ever — to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as a pathological form of private ordering: Powerful licensors using their considerable market power to impose a supracompetitive rate on a hapless licensee. While there is no way to know what the market rate looks like in a highly regulated industry like music publishing, the anticompetitive effects of these withdrawals may have detrimental consequences for artists, licensees and consumers. In industries such as music licensing, network effects, parallel pricing and tacit collusion can work to eliminate meaningful competition from the marketplace. The resulting lack of competition threatens to stifle innovation in both the affected, and related, industries. Normally, where a market operates in a workably competitive manner, the remedy for anticompetitive behavior can be found in antitrust law. In music licensing, however, some concerning behaviors, including both parallel pricing and tacit collusion, do not rise to the level of antitrust violations; as such, they cannot be addressed by antitrust law. This is no small irony. At one point, antitrust served as a check on the licensing collectives by establishing consent decrees to govern behavior. Due to a series of acquisitions that have reduced the music publishing industry to a mere three entities, the collectives that are being circumvented by these withdrawals (and whose conduct is governed by consent decrees) now pose less of a competitive concern than do individual publishing companies acting privately, or in concert through tacit collusion. The case of intellectual property rights, which defer competition for creators and inventors for a limited period of time, is particularly challenging for antitrust. Running contrary to conventional wisdom, this Article posits that regulation — not antitrust — is the optimal means of enabling entry and innovation in the music licensing market. While regulation is conventionally understood to restrict new entry and to interfere with competition, this Article demonstrates that where a market becomes highly concentrated, regulation can actually encourage competition by ensuring access to key inputs at competitive rates. While not without its drawbacks, including an increase in the cost of private action, remedial regulation in music licensing corrects anticompetitive behavior and ensures ongoing access to content and fair payment to artists, while supporting","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128124269","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":"Restoring the Legislative Framework for Patenting Applications of Scientific Discoveries","authors":"Peter S. Menell, Jeffrey A. Lefstin","doi":"10.2139/SSRN.2767904","DOIUrl":"https://doi.org/10.2139/SSRN.2767904","url":null,"abstract":"In Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012), the Supreme Court triggered the most radical redefinition of patent-eligible subject matter in U.S. history by engrafting onto § 101 an inventive application requirement for patenting practical applications of scientific discoveries.The Nation’s patent statutes, stretching back to the founding era, unmistakably afford patent protection to technological innovations and practical applications of scientific discoveries. The legislative record contains no hint of a second, “inventive application” hurdle for patent-eligibility of scientific discoveries. To the contrary, statutory text and legislative history reflect the clear intention to encourage “inventors and discoverers” to reveal the “mysteries of nature,” whether or not they are inventively applied.The Supreme Court derived the “inventive application” requirement from Neilson v. Harford (1841). This brief explains the profound misinterpretation that led the Supreme Court astray and urges the Court to grant certiorari in Sequenom v. Ariosa Diagnostics so as to restore the patentability framework that Congress intended.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114806663","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":"Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of 'Fair Use'","authors":"Peter A. Jaszi, Michael W. Carroll, S. Flynn, Michael Palmedo, Kimberlee Weatherall, Ariel Katz","doi":"10.2139/SSRN.2773646","DOIUrl":"https://doi.org/10.2139/SSRN.2773646","url":null,"abstract":"This submission to the Australia Productivity Commission responds to a recently published PricewaterhouseCoopers report on Understanding the Costs and Benefits of Introducing a ‘Fair Use’ Exception, prepared for APRA, AMCOS, PPCA, Copyright Agency | Viscopy, Foxtel, News Corp Australia and Screenrights (“PWC Report”). The PWC Report does not provide a sound evidence base to evaluate the true total costs and benefits that the introduction of a fair use rights would have in Australia. Part I points out how the PWC Report fails to adequately define the nature of the real change being proposed in Australia – which is effectively to subject its existing fair dealing clause to an open list of potentially lawful purposes. Part II provides a survey of a range of benefits that the opening of Australia’s fair dealing clause to resemble the U.S. fair use doctrine may have, drawing from published research on the topic which is not canvassed by the PWC Report. Part III analyses the PWC Report’s evaluation of the costs of adopting fair use, criticizing the Report’s basis for concluding that adopting fair use will lead to massive shifts from licensed to unlicensed use of works, a litigation explosion and the destruction of all collective management organizations in Australia. The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact and should be disregarded in their entirety.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114959410","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, Standards, and Antitrust: A New Life for the Essential Facilities Doctrine? Some Insights from the Chinese Regulation","authors":"G. Colangelo, R. Pardolesi","doi":"10.2139/ssrn.2758892","DOIUrl":"https://doi.org/10.2139/ssrn.2758892","url":null,"abstract":"It is still controversial whether the intellectual property-antitrust interface should be viewed as a conflict or a finalistic convergence. The recent Chinese Regulation on the “Prohibition of Conduct Eliminating or Restricting Competition by Abusing Intellectual Property Rights” provides the opportunity to update the analysis of this real (or apparent) conflict.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"268 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116080289","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":"Debtor Rights, Credit Supply, and Innovation","authors":"G. Cerqueiro, D. Hegde, M. F. Penas, Robert C. Seamans","doi":"10.2139/ssrn.2246982","DOIUrl":"https://doi.org/10.2139/ssrn.2246982","url":null,"abstract":"Firms’ innovative activities can be sensitive to public policies that affect the availability of capital for risky projects. In this paper, we investigate the effects of regional and temporal variation in U.S. personal bankruptcy laws on firms’ innovative activities. We find bankruptcy laws that provide stronger debtor protection decrease the number of patents produced by small firms. Stronger debtor protection also decreases the average quality, and variance in quality, of firms’ patents. We find evidence that the negative effect of stronger debtor protection on experimentation and innovation may be due to the decreased availability of external finance in response to stronger debtor rights — an effect amplified in industries with a high dependence on external finance. Hence, while it is typically assumed that stronger debtor protection encourages innovation by reducing the cost of failure for innovators, we show that it can instead dampen innovative activities by tightening the availability of external finance to innovators.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"4 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130136779","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":"Access to Medicines in the Mature TRIPS Regime: A Sceptical View","authors":"C. Arup, J. Plahe","doi":"10.2139/SSRN.2730395","DOIUrl":"https://doi.org/10.2139/SSRN.2730395","url":null,"abstract":"This paper presents a way to think about a legal solution to an intractable problem, reconciling a now worldwide patent rights regime with access to essential medicines. In doing so, it insists that the potentialities of the current TRIPS flexibilities be assessed realistically. The focus is on the Indian legal experience of the flexibilities but, because India is the source of most generic drugs for poorer people around the world, it is the Indian experience in its interaction with the international agreement and in comparison with the laws in other countries, and indeed with the political economy of the production and distribution of medicines. This assessment raises questions about perspectives that expect the flexibilities to work at the national level. It considers what can be done now at the international level where the legal power of the patent begins.","PeriodicalId":125544,"journal":{"name":"ERN: Intellectual Property (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126465658","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}