LSN: Patent Law/Intellectual Property (Topic)最新文献

{"title":"Professors' Letter in Opposition to the 'Defend Trade Secrets Act of 2014' (S. 2267) and the 'Trade Secrets Protection Act of 2014' (H.R. 5233)","authors":"David S. Levine, Sharon K. Sandeen","doi":"10.2139/SSRN.2699735","DOIUrl":"https://doi.org/10.2139/SSRN.2699735","url":null,"abstract":"The undersigned are 31 professors from throughout the United States who teach and write extensively about intellectual property law, trade secret law, innovation policy and/or information law. We urge Congress to reject the proposed legislation to create a new private cause of action under the Economic Espionage Act of 1996 (“EEA”), known as the “Defend Trade Secrets Act of 2014” (“DTSA”) and the “Trade Secrets Protection Act of 2014” (“TSPA,” collectively, “the Acts”). As explained in Senator Coons’ press release announcing the introduction of the DTSA, \"In today’s electronic age, trade secrets can be stolen with a few keystrokes, and increasingly, they are stolen at the direction of a foreign government or for the benefit of a foreign competitor. These losses put U.S. jobs at risk and threaten incentives for continued investment in research and development. Current federal criminal law is insufficient.\"While we acknowledge the need to increase protection both domestically and internationally against domestic and foreign cyber-espionage, this is not the way to address those concerns. Instead, as explained below, the Acts will create or exacerbate many existing legal problems but solve none. Accordingly, we oppose their adoption.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129005421","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":"Fair Use for Free, or Permitted-but-Paid?","authors":"J. Ginsburg","doi":"10.15779/Z38GW14","DOIUrl":"https://doi.org/10.15779/Z38GW14","url":null,"abstract":"Fair use is an on/off switch: Either the challenged use is an infringement of copyright, or it is a fair use, which Section 107 declares \"is not an infringement of copyright.\" As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. The unpaid nature of fair use introduces pressures that may distort analysis, particularly of the \"transformative\" character of the use, and of potential market harm. Faced with a use, particularly in the context of new technologies, that a court perceives to be socially beneficial, a court may overemphasize its \"transformativeness,\" and correspondingly underestimate the market consequences, in order to prevent the copyright owner from frustrating the social benefit. Distortions can appear in the other direction as well: A court sensitive to the economic consequences of the unpaid use may feel obliged to downplay the public interest fostered by the use. Statutory licenses or privately negotiated accords within a statutory framework can alleviate the tension, by ensuring that uses that the legislator perceives to be in the public interest proceed free of the copyright owner’s veto, but with compensation – in other words, \"Permitted but Paid.\" The United States is an outlier in the broader international landscape of copyright exceptions. The copyright laws of EU member states, Canada, Australia, and New Zealand do not include an all-purpose fair use defense (though one has been proposed in Australia), but all these states have enacted a panoply of copyright exceptions, many of which require remuneration. Thus, while our fair use doctrine confronts courts with an all-or-nothing choice, other countries have charted middle courses between barring the use and permitting its unremunerated pursuit. In contending that some uses previously ruled \"fair\" should not remain unpaid, I argue that the copyright law should distinguish new distributions from new works, and should confine (free) \"fair use\" to the latter. I propose that many redistributive uses be \"Permitted but Paid,\" and be subject to a statutory framework for license negotiations, with compulsory licensing as a backstop. \"Permitted but Paid\" uses may be divided into two classes: Subsidy (socially worthy redistributions); and Market Failure (transactions costs are too high to warrant a licensing solution; or a new mode of dissemination – infant industry – is threatened by copyright owner recalcitrance). Because the inclusion of a use within the Market Failure class turns largely on facts that may evolve, these uses’ classification as \"Permitted but Paid\" should be subject to a phase-out, for example, a renewable sunset following a five-year review by the Copyright Office.Where the use confers a public benefit and the choice is all-or-nothing, a fair use outcome is assured. But were \"Permitted but Paid\" an option, we would not be lured by a dichotomy falsely pitting a","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"145 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128828223","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":"Copyright Law Enforcement in Online Environment","authors":"Yang Sun","doi":"10.2139/ssrn.2432987","DOIUrl":"https://doi.org/10.2139/ssrn.2432987","url":null,"abstract":"Among a variety of enforcement strategies, copyright law enforcement function as strongest safeguard to control and eliminate copyright infringement. As traditional strategy, copyright law enforcement is fundamentally distinguished from the first type by DRM system. Because copyright law enforcement is primarily operated by judicial system and government agencies, such type of model is more powerful and overwhelming than the technology-based DRM system with respect to online copyright enforcement. In general, the copyright law enforcement system remedy the losses of copyright owners and punish infringement as an ex post enforcement strategy. Although both judicial system and the enforcement by government agencies require certain procedures and additional costs to copyright owners, the legal protection provided by copyright law enforcement is usually ultimate and determinative. Due to the reliability, copyright owners have long relied on copyright law enforcement as the major strategy to enforce their copyright throughout history. The copyright law enforcement is not a single definition. Rather, the law enforcement generally consists of civil remedies and criminal enforcement. Basically, civil remedies are granted by courts under judicial system pursuant to copyright statutes. Criminal enforcement, on the other hand, is the result of cooperation by government agencies and courts.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121188582","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":"This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age","authors":"Peter S. Menell","doi":"10.2139/SSRN.2347674","DOIUrl":"https://doi.org/10.2139/SSRN.2347674","url":null,"abstract":"This article calls attention to the dismal state of copyright’s public approval rating. Drawing on the format and style of Ira Glass’s “This American Life” radio broadcast, the presentation unfolds in three parts: Act I – How did we get here?; Act II – Why should society care about copyright’s public approval rating?; and Act III – How do we improve copyright’s public approval rating (and efficacy)?","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122532310","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":"Hatch-Waxman Patent Case Settlements – The Supreme Court Churns the Swamp","authors":"Kent S. Bernard","doi":"10.2139/SSRN.2335615","DOIUrl":"https://doi.org/10.2139/SSRN.2335615","url":null,"abstract":"The Supreme Court in FTC v. Actavis, Inc. rejected both (a) the settling parties’ view that any settlement within the scope of the patent at issue and not the result of sham litigation was legal; and (b) the FTC’s view that any settlement which involved a transfer of any money or asset from the patent owner to the challenger was presumptively illegal. The Court chose to open up door (c), and require that there be a full “rule of reason” inquiry into the settlement.This article explores what that means in terms of settlements going forward, and suggests reforms that might make the whole system work better.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133788226","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":"Foreign Ownership of Firms in IP Intensive Industries","authors":"Jonathan Band, Jonathan Gerafi","doi":"10.2139/SSRN.2333839","DOIUrl":"https://doi.org/10.2139/SSRN.2333839","url":null,"abstract":"For decades, U.S. domestic and foreign IP policy has been predicated on the assumption that U.S. firms dominated both domestic and foreign markets for IP products. In an effort to evaluate the standing of U.S. firms in IP intensive industries, this paper identifies the “nationality” of the leading firms in several important IP industries. The paper finds that for many industries, this assumption of U.S. dominance is no longer correct. This suggests that at times, IP policies adopted by Congress and the Executive Branch may benefit foreign corporations at the expense of U.S. consumers.Here are some of the paper’s key findings: Four of the “Big Six” publishers, the largest English language trade publishers, are foreign-owned. More than 80 percent of the global revenue of the Big Six is generated by these foreign-owned companies. These foreign-owned companies published more than two thirds of the trade books in the U.S.Four of the five largest STM (science, technical and medical)/Professional publishers are foreign-owned. More than 90 percent of the revenue of the five largest STM/Professional publishers was generated by foreign-owned firms.Only seven of the world’s 50 largest publishers of all categories are U.S.-owned.The book publishing industry in Europe has approximately twice as many employees as in the United States.Of the top ten best-selling fiction authors in any language whose work is still in copyright, five are foreign. A British author wrote three of the top five best-selling books in the U.S. in 2012.Two of the three major record labels are foreign-owned. These two labels have a market share of 59 percent. Thirteen of the twenty best-selling recording artists are foreign.Of the 50 most popular motion pictures in the United States in 2012, half were filmed partly or entirely outside of the United States.In 2013, the Oscar winners in thirteen of 24 categories were foreign. In 2012, the Oscar winners in eleven of 24 categories were foreign. In 2011, the Oscar winners in eight of 24 categories were foreign.Seventy percent of the most recent generation of game consoles were manufactured by Japanese companies. Japanese companies have manufactured 92 percent of all game consoles ever sold.In 2011, foreign companies obtained 7,000 more U.S. patents than U.S. companies.In 2011 and 2012, seven of the top ten companies receiving U.S. patents were foreign.57 percent of the global revenue of the fifteen largest pharmaceutical companies was generated by foreign-owned companies.The majority of the employees of both the U.S. and the foreign-owned pharmaceutical companies work outside of the United States.There is absolutely nothing sinister about foreign ownership of firms in IP intensive industries, including foreign ownership of companies originally established in the U.S. This is to be expected in a globalized economy with multinational corporations and complex cross-border supply chains. Moreover, many countries in Western Europe and East Asia ar","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"596 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116459926","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":"Comparative Analysis of Patenting Biotechnology Inventions in the U.S., Europe, Japan and China","authors":"Weiwei Han","doi":"10.2139/ssrn.2225845","DOIUrl":"https://doi.org/10.2139/ssrn.2225845","url":null,"abstract":"Biotechnology has been developing at a dramatic pace. The success story of modern biotechnology industry is closely linked with the evolution of modern patent law and patents are pillars of biotechnology industry. The context for patenting DNA sequences has changed markedly since the 1990s. Recent decisions regarding biotechnology inventions have aroused rethinking of the important issues in this unique field globally. The thesis will conduct a comparative analysis of patenting biotechnology inventions in the U.S., Europe, Japan and China. Doctrines and practice regarding patent eligibility, utility, novelty, inventive step and enablement will be introduced and discussed in connection with typical cases and recent decisions. Unique requirements, including requirement for patent disclosure of the source of genetic resources in China, will be highlighted.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125088085","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 Brazilian Civil Rights Framework for the Internet: The Right to Freedom of Expression Versus Copyright Protection","authors":"Barbara Marchiori de Assis, F. Lancieri","doi":"10.2139/SSRN.2258584","DOIUrl":"https://doi.org/10.2139/SSRN.2258584","url":null,"abstract":"This paper defends the adoption, by Brazilian legislation, of safe harbors that exempt online service providers from any civil liability arising from the violation of copyrighted material uploaded by third parties. Such exemption is justified because in the lack thereof, websites would be transformed into censors of what might or not be shared online, undermining the great expansion of freedom of expression rights that were made possible by the Internet. This paper is divided in six different sections. The first introduces the aforementioned theme; the second describes the concept of safe harbor regulations present in the legislation and legal doctrines of different jurisdictions around the world, including the safe harbors now being discussed in Brazil; the third presents case law from the United States, France, Italy, and Germany to discuss how these safe harbors are being interpreted around the world; the fourth presents the way Brazilian tribunals have been deciding matters regarding third party content on the web; the fifth uses the proportionality test applicable in jurisdictions such as Germany and Brazil to justify the establishment of safe harbors; and the sixth briefly concludes what was previously discussed.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130063598","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":"Diversity of Distributed Music and Modern Telecommunication Technologies: A Network Perspective","authors":"Shinto Teramoto, Desrezka Gunti Larasati, Paulius Jurčys","doi":"10.2139/ssrn.2237852","DOIUrl":"https://doi.org/10.2139/ssrn.2237852","url":null,"abstract":"This paper adresses the debates surrounding the impact of the Internet and cloud computing technology to the activities in music industry, especially at the stage of music distribution and dissemination. Building upon the realistic observations concerning the ‘conventional’ as well as innovative music distribution business models, this paper provides for simulations and analysis using the social network approach. These simulations are used in order to assess how the goal of diversity of music could be achieved in innovative communication networks. The paper shows the essential role of intermediaries that are involved in facilitation of the diversity of music, innovation, as well as the system of music distribution and dissemination. At the final Chapter, this paper introduces some considerations concerning copyright as a legal tool used in constructing the music distribution and dissemination system.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126429816","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":"Competitive Patent Law","authors":"William H. J. Hubbard","doi":"10.2139/ssrn.1980383","DOIUrl":"https://doi.org/10.2139/ssrn.1980383","url":null,"abstract":"Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must “out-innovate . . . the rest of the world,” and that patent reform is a “critical dimension[]” of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will “give American inventors and innovators the 21st century patent system they need to compete.” Surprisingly, no legal scholar has assessed whether patent reform is capable of making American firms more competitive in global markets. This Article begins to fill this void by examining whether U.S. patent law can provide U.S. innovators with enhanced incentives to invent. The Article argues that traditional approaches to improving U.S. patent law, including the recent patent reform act, likely will do little to help Americans invent more than their foreign rivals. Nevertheless, helping U.S. businesses compete in global markets is vital to our economic prosperity, as we face a crippling recession, declining innovation capacity, and increasing pressure from foreign competition. Accordingly, this Article argues that federal lawmakers should consider nontraditional approaches to U.S. patent law, including using law to foster a culture in the United States that promotes innovation.","PeriodicalId":208710,"journal":{"name":"LSN: Patent Law/Intellectual Property (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123099392","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}