Intellectual Property Law eJournal最新文献

{"title":"The Incentives Balance Test in the EU Microsoft Case: A More 'Economics-Based' Approach?","authors":"S. Vezzoso","doi":"10.2139/ssrn.1358924","DOIUrl":"https://doi.org/10.2139/ssrn.1358924","url":null,"abstract":"Microsoft's claim that it had an objective justification for its refusal to supply interoperability information covered by intellectual property rights was dismissed by the EU Commission. To substantiate this, the Commission applied a newly framed incentives balance test and concluded that the need to protect Microsoft's incentives to innovate, under the specific circumstances of the case, could not objectively justify the undertaking's refusal to license. On the contrary, Microsoft's incentives to innovate were most likely to increase if it were required to license its interoperability information to competitors. This new balancing test is very controversial, both from the economic and legal perspective. It can also be questioned whether the balancing test to justification has been correctly applied in the case at issue. However, the paper purports to show that, for future discussion under the expected policy debate on a more \"economics-based\" approach to Article 82 of the EU Treaty, valuable insights can be gained from a careful scrutiny of the incentives balance test. In particular, the test helps realizing that a dynamic competition approach on the abuse of dominant position should devote considerable efforts to better understand the working of innovation processes at different industry layers. Moreover, that at least equally challenging is the identification of the appropriate competition remedies in industries characterized by, on the one side, Schumpeterian modes of innovation, and, on the other, strenuous stasis forces like network effects.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"464 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116230843","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":"'Rights' and Wrongs: What Utility for the Right to Health in Reforming Trade Rules on Medicines?","authors":"L. Forman","doi":"10.2307/20460102","DOIUrl":"https://doi.org/10.2307/20460102","url":null,"abstract":"This paper explores the legal and normativepotential of the right to health to mitigate the restrictive impact of trade-related intellectual property rules on access to medicines, as evidenced by the global outcomes of the seminal pharmaceutical company litigation in South Africa in 2001. I argue that the litigation and resulting public furor provoked a paradigm shift in global approaches to AIDS treatment in sub-Saharan Africa. I argue further that this outcome illustrates how human rights in concert with social action were able to effectively challenge dominant claims about the necessity of stringent trade-related intellectual property rights in poor countries, and ergo, to raise the priority of public health needs in related decision-making. I explore the causal role of rights in achieving these outcomes through the analytical lens provided by international legal compliance theories, and in particular, the model of normative emergence proposed by Martha Finnemore and Kathryn Sikkink. I suggest that the AIDS medicines experience offers strategic guidance for realizing the right to health's transformative potential with regard to essential medicines more generally.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123290571","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":"Enabling Reproducible Research: Open Licensing for Scientific Innovation","authors":"V. Stodden","doi":"10.7916/D8N01H1Z","DOIUrl":"https://doi.org/10.7916/D8N01H1Z","url":null,"abstract":"There is a gap in the current licensing and copyright structure for the growing number of scientists releasing their research publicly, particularly on the Internet. Scientific research produces more scholarship than the final paper: for example, the code, data structures, experimental design and parameters, documentation, and figures, are all important both for communication of the scholarship and replication of the results. US copyright law is a barrier to the sharing of scientific scholarship since it establishes exclusive rights for creators over their work, thereby limiting the ability of others to copy, use, build upon, or alter the research. This is precisely opposite to prevailing scientific norms, which provide both that results be replicated before accepted as knowledge, and that scientific understanding be built upon previous discoveries for which authorship recognition is given. In accordance with these norms and to encourage the release of all scientific scholarship, I propose the Reproducible Research Standard (RRS) both to ensure attribution and facilitate the sharing of scientific works. Using the RRS on all components of scientific scholarship will encourage reproducible scientific investigation, facilitate greater collaboration, and promote engagement of the larger community in scientific learning and discovery.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129795963","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 Influence of Strategic Patenting on Companies' Patent Portfolios","authors":"K. Blind, K. Cremers, Elisabeth F. Mueller","doi":"10.2139/ssrn.971357","DOIUrl":"https://doi.org/10.2139/ssrn.971357","url":null,"abstract":"This paper analyses whether strategic motives for patenting influence the characteristics of companies' patent portfolios. We use the number of citations and oppositions to represent these characteristics. The investigation is based on survey and patent data from German companies. We find clear evidence that the companies' patenting strategies explain the characteristics of their patent portfolios. First, companies using patents to protect their technological knowledge base receive a higher number of citations for their patents. Second, the motive of offensive - but not of defensive - blocking is related to a higher incidence of oppositions, whereas companies using patents as bartering chips in collaborations receive fewer oppositions to their patents.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124545709","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 Balance: The Patentability of DNA-Related Technology in the US and Europe","authors":"T. Minssen","doi":"10.2139/ssrn.1482966","DOIUrl":"https://doi.org/10.2139/ssrn.1482966","url":null,"abstract":"Scholarship speech prepared for the AWAPATENT Foundation for the Promotion of Scientific Research in the Area of Intellectual Property Rights, Operaterassen Stockholm, Jan. 27th, 2009","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121906305","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":"Acquiring a Flavor for Trademarks: There’s No Common Taste in the World","authors":"Amanda E. Compton","doi":"10.2139/ssrn.1568944","DOIUrl":"https://doi.org/10.2139/ssrn.1568944","url":null,"abstract":"This paper considers the viability of registering “flavor�? as a trademark based on the decision in In re N.V. Organon. Nontraditional trademarks have long been accepted in the United States, and the possibility of being able to protect flavor as a trademark is on the horizon. In 2002, N.V. Organon, a global manufacturer of an array of prescription medicines, filed a trademark application to register “an orange flavor�? for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills.�? The Examining Attorney refused registration on two grounds: (1) the matter failed to function as a trademark; and (2) the matter was functional as used in connection with the goods claimed in the application. Organon appealed the decision to the Trademark Trial and Appeal Board, putting forth scant evidence to overcome either objection. This paper examines difficulties with protecting flavor as a trademark, and more importantly, explores whether we should allow exclusion.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117071662","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":"Optimal Patent Jurisprudence","authors":"S. Baker, C. Mezzetti","doi":"10.2139/ssrn.1355863","DOIUrl":"https://doi.org/10.2139/ssrn.1355863","url":null,"abstract":"We model judicial learning about optimal patent policy. The court is infinitely lived; the plaintiff and defendant are short lived. Litigated cases provide the court with information about the optimal rule. Different cases provide different sorts of information. Opinions influence the stream of future cases likely to be litigated and, as a result, change the flow of information to the court. In structuring opinions, courts make decisions whether to learn fast or slow. We have three main results. First, patent law will stabilize even if the court places zero value on the \"predictability\" of legal rules. Second, path dependence of law is a rare outcome. It occurs only when the court stops learning and decides that the error costs (the losses from some cases going the wrong way) are lower than the decision costs. Finally, the law can be optimally incoherent in the short run. The court will pay lip service to prior holdings, while dramatically altering the legal landscape. Patent opinion incoherence, which is often the subject of much scholarly critique, makes sense because it facilitates future learning from a population of cases most important to the court for policy-making.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130000509","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":"Growth of Intellectual Property Law and Trade Marks","authors":"R. Chakraborty","doi":"10.2139/SSRN.1335874","DOIUrl":"https://doi.org/10.2139/SSRN.1335874","url":null,"abstract":"The object of the trade mark is to make the goods of a manufacturer or trader known to the public as his and thereby enable him to secure in course of time such profits as may accrue from the reputation which he may build up for his goods by superior skill, efforts and enterprise. To the purchaser a genuine trade mark gives assurance of the make and the quality of the article he is buying. The concept of trade marks and the law governing the use thereof owe their origin to business competition, practice and custom. Often considerable amount of money is spent in making a name or symbol popular through various media of advertisement. As a result, the trade mark may acquire great reputation, and may often become a stamp of quality and a symbol of origin. A good trade mark is he best sales man of the goods. Ever manufacturer or trader who has built up a reputation for his mark is naturally jealous of protecting it against piracy by unscrupulous competitors. Protection of trade marks is necessary not only for honest trader bur also for the benefit of the purchasing public against imposition and fraud. At common law the reputation of a business, symbolized through a name or label, can be protected only by an action of passing off, the procedure for which is cumbersome and the outcome uncertain. Registration of a trade mark under Trade Mark Act, 1999 confers on the proprietor certain statutory rights which are fur more extensive than common law rights, and affords a convenient means of protecting those rights against infringement. Action against infringement of trade mark has been made a statutory right under the Trade Marks Act. But the action against passing off of trade marks has only been recognized by the Act. The Act merely lays down the procedure to be followed in such an action. The substantive part constituting the principles and the grounds for such an action still form part of the common law, from which it has been adopted. The project aims at analyzing the law relating to infringement and passing off of the trade marks. It aims at bringing out the difficulties that are faced by the court in deciding in an action of passing off, due to its common law origin and its want of being a statutory remedy. The project ends with a few observation and suggestions put forward by me after analyzing the literature and the case laws on the subject. I suggest, registration of trade marks be made compulsory as to cover up lacunas created due to lack of binding principles in case of establishing a passing off action.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127959153","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 Concept of Property in the Digital Era","authors":"R. Merges","doi":"10.2139/SSRN.1323424","DOIUrl":"https://doi.org/10.2139/SSRN.1323424","url":null,"abstract":"In this Essay I argue that the basic case for property is still a very strong one. Individual control over individual assets still makes sense. I defend property rights in digital creations in the face of two general scholarly critiques: The first is what I call digital determinism - the idea that the central driving force behind IP policy should be the technological imperatives of digital creation and distribution. I argue that the inherent logic of digital technology should not drive IP policy. Second, I discuss the idea that the distinctive feature of digital technology, and therefore the thing that policy should most seek to encourage, is collective creativity. I argue that individual creators are still crucial, and that IP law does not interfere with widely dispersed collective works such as Wikis. Finally, I push for recognition that IP policy should not be blinded by the promise of massive amounts of amateur content; solicitude for what I call \"creative professionals\" - people who make a living creating high-quality content - has been and must continue to be an important part of IP law.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126895801","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 Strange Odyssey of Software Interfaces and Intellectual Property Law","authors":"Pamela Samuelson","doi":"10.2139/ssrn.1323818","DOIUrl":"https://doi.org/10.2139/ssrn.1323818","url":null,"abstract":"This book chapter traces the strange odyssey of interfaces through various forms of intellectual property protection. Interface specifications were initially either public domain documents or protected as trade secrets, depending on whether or not they were published. For a time, it seemed as though sui generis protection would be the best way to deal with the interoperability challenges posed by programs, but then copyright became the norm for software protection. Whelan made it seem that interface specifications would be protectable by copyright law as program SSO. Altai and Sega, however, dashed those expectations. Software developers then shifted to patent protection for interfaces, as well as pinning their hopes on the enforceability of anti-reverse engineering clauses in software license contracts. Recent developments give hint of a new shift toward regulated licensing of patented interfaces. No other intellectual artifact has had a comparable tortuous journey through IP law.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"147 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123496111","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}