 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
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- Should Using an AI Text Generator to Produce Academic Writing Be
Plagiarism'
Authors: Brian L. Frye et al.
Abstract: Author's Foreword: I “wrote” this article while taking a bath with a bottle of champagne, by submitting the questions in bold to ChatGPT and copying its responses. I did not bother providing citations for ChatGPT’s claims, because they would obviously be superfluous.Editor-in-Chief's Foreword: In 2023, the question is unavoidable: when it comes to scholarship, and in our case, legal scholarship, what do we do about artificial intelligence (AI) like ChatGPT' Do we need to do anything' In the Comment that follows, author Brian L. Frye and ChatGPT tried to provide an answer to these questions. Actually, ChatGPT did most of the answering, responding to the questions Professor Frye asked it late last year.When the opportunity came to present the results of that “interview,” we could not say no. At the same time, we would be lying if we said that we knew exactly how to present the piece. This remained a topic of discussion throughout its publication process, from seemingly simple questions like “How do we label this'” to ones that turned out surprisingly complex, like “Does this need footnotes'” Being a student law journal, of course we landed on adding footnotes: they are our lifeblood. Not only do the claims ChatGPT make warrant some version of fact-checking, but also even though it assembles its answers from piles of existing data out there in the world, readers deserve some context surrounding those answers and those piles. How do we, as editors, edit ChatGPT’s sentences when those sentences are basically just statistically-likely strings of words' Suffice it to say, our editorial team still has differences of opinion on those questions and a whole lot more.That said, this piece has far fewer citations than a traditional article, and most are tangential to their related “proposition” in the text. As ChatGPT describes its own operation below, it essentially uses everything as a source; and if everything is a source, how can one cite anything' Therefore, many citations will point not necessarily to support for any given “proposition,” but rather to writing by Professor Frye on similar subject matter—after all, his queries generated the responses—or other sources of commentary that can further inform the reader about the issues raised. Is it worth asking whether these are “propositions” at all, or simply an assortment of symbols that has some appearance of intentional ordering, almost like the English-language equivalent of a successfully completed Sudoku' Probably. Citations also dwindle in the piece’s latter half; at that point ChatGPT appears to start cannibalizing and/or reusing its own answers, so providing citations seemed . . . inapposite.There are some things we do know for sure: while his scholarship has covered numerous topics, Professor Frye has written extensively on the problems of originality, the potential obsolescence of copyright, and the embrace of plagiarism, continuously challenging our conventional wisdom on those subjects—as well as the usefulness of traditional academic writing in the first place. (You will see reference to his works below.) Within that context, this Comment serves as a new provocation, in every sense of the term, requiring us to ask some uncomfortable questions about how we see authorship, creativity, and scholarship.And it is in this light that we ask readers to approach what follows by keeping the following questions in mind—questions we continue to ask ourselves: what do we think of when we think of originality' Does authorship require a human presence' If ChatGPT can appear to make academic sense—even though it has no conception of the reality the words it uses refers to—what does that say about the current form of scholarship' Whatever your answers might be, what follows is our attempt to present the conversation between Professor Frye and ChatGPT in a good-natured way by adding a little context, providing some additional resources, and poking a little fun at everyone involved. We are (pretty) sure ChatGPT would appreciate the joke . . . if it knew what a joke was.Text written by the author appears in bold type; text generated by ChatGPT appears in italics. We hope you enjoy.
PubDate: Tue, 23 May 2023 14:57:58 PDT
- The Fashion Workers Act: Closing the Regulatory Loophole in the New York
Fashion Industry
Authors: Kayleigh Ristuben
Abstract: The fashion industry in New York has largely been unregulated due to a loophole in current law. This has allowed fashion models to face difficulties that would otherwise be addressed by laws regulating other occupations within the entertainment industry. The New York state senate has introduced the Fashion Workers Act which is aimed at addressing these issues and closing the regulatory loophole. This Note analyzes the existing regulatory framework in both New York and California to compare them with the proposed bill. It then uses legislative history from past regulatory attempts to anticipate and address potential industry pushback while offering solutions to issues within the bill. With some equitable revisions, the Fashion Workers Act can be the much-needed vehicle for change.
PubDate: Tue, 23 May 2023 14:57:55 PDT
- Protecting Producers’ Copyrights: A Proposal for Group Registration of
Non-Sample-Based Musical Beats
Authors: Matthew Roomberg
Abstract: “Beats” are the instrumental tracks that form the foundation of hip-hop, pop, and EDM songs. The authors who create them, often called producers or beatmakers, make hundreds or thousands of new distinct beats each year to raise their chance of attaining commercial success. But wholesale pirating of original beats has become rampant, and authors face significant obstacles in the search for remedies. One such obstacle is the great difficulty and expense of registering the copyrights associated with hundreds or thousands of original beats.Registration with the U.S. Copyright Office is a critical step to obtaining most of the remedies available to a copyright owner. In particular, an owner cannot sue for copyright infringement unless the work has been registered. Registration of each individual work requires an application and filing fee. For a prolific author like a beatmaker, the time and money required to register each work quickly becomes exorbitant. The Copyright Office has promulgated several group registration options, which allow an applicant to register multiple works with a single application and filing fee, but none of the existing options adequately address beatmakers’ predicament.This Note submits that the Register of Copyrights create a new group registration option for non-sample-based musical beats. While group registration options undoubtedly come with administrative challenges, this Note addresses those challenges head on and proposes a solution that both promotes the registration of beats and is administratively feasible.
PubDate: Tue, 23 May 2023 14:57:52 PDT
- Solutions Still Searching for a Problem: A Call for Relevant Data to
Support “Evergreening” Allegations
Authors: Erika Lietzan et al.
Abstract: For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would have provided, and longer than acceptable as a normative matter. Policymakers have been invited to consider a database, hosted by the University of California Hastings College of Law, that counts patents and exclusivities associated with new drugs, identifies the earliest and latest expiring patent or exclusivity for each, and calculates the number of months between those dates. Our audit of more than 200 entries concludes that the underlying raw dataset can be a useful tool for policymakers, filling a gap that exists because early FDA publications have not been digitized. But our audit also raises questions about inferences drawn in and from the secondary database that interprets the dataset.If the goal of policymakers is to ensure that current patent and exclusivity policies do not prevent brand products from facing generic competition for “too long”—whatever “too long” might mean—the key questions are (1) when do brand products actually face this competition, and (2) what exactly drives the timing of this competition' For every new chemical entity we examined, a generic drug was commercially available before the date represented in the database as the “latest” expiry date, i.e., the date that—the database claims—reflects the “additional time for which a company may have limited generic competition and monopolized a drug product.” Indeed, within our dataset, generic competition launched on average eighty-four months (seven years) before the Hastings Database implied it would. On average, the seventy-nine new chemical entities in our dataset experienced generic competition sixty-eight months (or more than five years) before the Hastings Database date.Our claim, therefore, is that the latest expiration date of the various protections applicable to a specific new drug application is not the most relevant data point for policymaking that means to focus on ensuring timely generic competition with new drugs. Patients, healthcare providers, insurers, and the innovating and generic industries share an interest in evidence-based policymaking. But it is not enough for advocates of reform to offer data; the data must be not only accurate but also relevant. A study designed to produce relevant data would consider the market entry date of the first generic drug based on any brand product containing a particular new active ingredient and would actually determine the factors driving that market entry date. And if a more relevant dataset would more precisely document (or rule out or add nuance to) a supposed problem that is said to justify reform, it is incumbent on supporters of reform to generate those data. It would be premature to enact legislative reforms before they do so.
PubDate: Tue, 23 May 2023 14:57:50 PDT
- Global Digital Governance Through the Back Door of Corporate Regulation
Authors: Orit Fischman-Afori
Abstract: Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive framework for imposing accountability standards on technology companies and on the operation of AI technologies, both traditional perceptions regarding the limits of intervention in the private sector and contemporary perceptions regarding the limits of antitrust tools hinder such legal moves.Given the obstacles inherent in the use of existing legal means for introducing a digital governance regime, this Article proposes a new path for corporate governance regulations. The proposal, part of a “second wave” of regulatory models for the digital sphere, is based on the understanding that the current complex technological reality requires sophisticated and pragmatic legal measures for establishing an effective framework for digital governance norms. Corporate governance is a system of rules and practices by which companies are guided and controlled. Because the digital sphere is governed by private corporations, it seems reasonable to introduce the desired digital governance principles through a framework that regulates corporations. The bedrock of corporate governance is promoting principles of corporate accountability, which are translated into a wide array of obligations. In the last two decades, corporate accountability has evolved into a new domain of corporate social responsibility (CSR), promoting environmental, social, and governance (ESG) goals not aimed at maximizing profits in the short term. The various benefits of the complex corporate governance mechanisms may be used to promote the desired digital governance regime that would be applied by the technology companies. A key advantage of the corporate governance mechanism is its potential to serve as a vehicle to promulgate norms in the era of multinational corporations. Because the digital sphere is governed by a few giant companies from the United States, corporate governance may be leveraged to promote digital governance principles with a global reach in a uniform manner.The proposed path for introducing global digital governance principles through the back door of U.S. corporate regulation has not been raised and discussed yet in the literature or by policymakers. This Article aims to explore this promising model for regulating the digital sphere in a globalized manner and provide a theoretical basis for it.
PubDate: Tue, 23 May 2023 14:57:47 PDT
- In the Thick(et) of It: Addressing Biologic Patent Thickets Using the Sham
Exception to Noerr-Pennington
Authors: Anna Zhou
Abstract: A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can ac- quire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.Recent class action litigation in the Northern District of Illinois, In re: Humira (Adalimumab) Antitrust Litigation, challenged AbbVie’s patent thicket surrounding Humira. This case tried to posit a novel approach to addressing patent thickets using the sham exception to Noerr-Pennington. While the Seventh Circuit affirmed the district court’s opinion in Mayor of Baltimore v. AbbVie, Inc., this Note aims to explore the intersection of antitrust and patent law regarding patent thickets and addresses the use of antitrust law remedies to patent thickets. This Note further argues that, in a case like In re: Humira, the sham exception to Noerr-Pennington should ap- ply, and that courts should consider patent thickets in two ways. First, courts should look at the value of a patent, and when the value is worth less than the cost of prosecuting that patent, the patent should be considered objectively baseless under the Professional Real Estate Investors test. Secondly, courts should adopt a more flexible approach when considering a sequence of petitions, like a sequence of accumulated patents, as part of antitrust analysis.
PubDate: Wed, 05 Apr 2023 10:36:41 PDT
- The By-Design Approach Revisited: Lessons from COVID-19 Contact Tracing
Apps
Authors: Mickey Zar et al.
Abstract: This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other regulatory forces to generate a social outcome.
PubDate: Wed, 05 Apr 2023 10:36:38 PDT
- Trademark Counterfeiting Enforcement Beyond Borders: The Complexities of
Enforcing Trademark Rights Extraterritorially in a Global Marketplace with
Territorial-Based Enforcement
Authors: Kari Kammel et al.
Abstract: We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.
PubDate: Wed, 05 Apr 2023 10:36:36 PDT
- Ukraine on My Mind: Cultural Heritage and the Current Armed Conflict
Authors: Irina Tarsis
Abstract: The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine and fight as a soldier against the invading forces. Nearly a year after the start of the war, Ukraine is still fighting to defeat the Russian Federation’s invading forces while actively seeking to protect and preserve its cultural heritage. As the war in Ukraine continues, UNESCO has verified that since February 24, 2022, “104 religious sites, 18 museums, 82 buildings of historical and/or artistic interest, 19 monuments, 11 libraries” have been damaged or destroyed, and these numbers are increasing.
PubDate: Wed, 05 Apr 2023 10:36:33 PDT
- Duplicate, Decolonize, Destroy: Current Topics in Art and Cultural
Heritage Law
Authors: Fordham IPLJ
Abstract: The opening panel discussed the upcoming case before the United States Supreme Court, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Panelists included Amelia K. Brankov, Founder, Brankov PLLC and Chair of the New York City Bar Association Art Law Committee; Joel L. Hecker, Principal Attorney, Law Offices of Joel L. Hecker; and Philippa S. Loengard, Director of the Kernochan Center for Law, Media & the Arts and Lecturer-in-Law at Columbia Law School. The case is compelling because the Court rarely hears copyright cases, especially those addressing the affirmative defense of fair use. Moderated by Christopher J. Robinson, Of Counsel, Rottenberg Lipman Rich, P.C., the panel discussed the case, the fair use issues it raises, and their respective hopes and fears for the outcome.Out of Context: Reframing and Repatriating Objects in Museum and Public Spaces explored the decolonization of cultural institutions and attempts to re-contextualize historical objects with fraught lineage through a contemporary lens. Topics included the recent movement in a longstanding debate on the return of Benin bronzes to Nigeria, the role of customs law enforcement in regulating the importation of historical artifacts into the United States, and the Nepal Heritage Campaign’s grassroots efforts to return a sacred statue to its original shrine in Kathmandu. Moderated by Steven R. Schindler, Founding Partner, Schindler Cohen & Hochman LLP, this panel included panelists Rudyard W. Ceres, Partner, Freeborn and Peters LLP; Nicholas M. O’Donnell, Partner, Sullivan and Worcester LLP; and Erin L. Thompson, Professor of Art Crime, John Jay College (CUNY).In her Keynote, Irena Tarsis, Founder and Managing Director of the Center for Art Law, discussed the destruction and protection of cultural heritage throughout the armed conflict unfolding in Ukraine.Moderated by Leila Amineddoleh, Founding Partner, Amineddoleh & Associates LLC, and Adjunct Professor of Law at Fordham, the panel Erased: Protecting Cultural Heritage in Times of Armed Conflict discussed various contexts in which war and hostility have threatened cultural heritage. The panelists included Yelena Ambartsumian, Founder, Origen; Jennifer Kreder, Of Counsel, Rottenberg Lipman Rich P.C.; and Michael McCollough, Partner, Pearlstein & McCullough LLP. The panel discussed the history of the destruction of cultural property and looting from the Nazi-Era to the present day, the legal tools available to victims, and the responsibilities and rights of collectors.
PubDate: Wed, 05 Apr 2023 10:36:31 PDT
- Errata
PubDate: Fri, 27 Jan 2023 14:03:56 PST
- From Drawstring to Drawback: A Proposal for the Donation Alternative
Program to Promote Environmental Responsibility in Fashion Act
Authors: Elliot O. Jackson
Abstract: Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin of Dapper Dan’s initial and very limited creations is evaluated herein as model for codifying reverse engineering in fashion. Reverse engineering is a deconstructive process that permits the extraction of design and functional information from electronics and other technological equipment. In fashion, however, this process exists in the form of deconstructing apparel or other goods to appreciate the skillful methodology and artful techniques that are used in the creative process. A duty drawback program, facilitated by the USCBP, would allow reverse engineering to be possible in fashion. Therefore, this article advocates for the expansion of USCBP’s duty drawback program by highlighting preexisting gaps in the program that currently present issues of sustainability, environmental, and social justice across the country. This article also discusses the feasibility of the duty drawback expansion, which would require congressional action to amend the Tariff Act of 1930, and proposes a legislative amendment—the Donation Alternative Program to Promote Environmental Responsibility in Fashion Act (hereinafter, the “DAPPER Fashion Act”).
PubDate: Fri, 27 Jan 2023 14:03:53 PST
- The Case Of The Missing Device Patents, Or: Why Device Patents Matter
Authors: Erika Lietzan et al.
Abstract: A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how they do it, rather than by their composition, and because the device framework, unlike the drug framework, does not offer a regulatory advantage to companies that make exact copies, the most important moment in the lifecycle of a new medical device is the moment a competitor designs an alternative device that accomplishes the same end result. This can happen within a few short years. By way of contrast, for drug innovators the critical lifecycle moment is generally no earlier than expiry of the active ingredient patent, which generally happens later. In other words, medical devices have much shorter commercial lifecycles. While some suggest that medical device patents are therefore less important than drug patents, our explanation indicates only that the length of the patents is less important. Recent empirical research (Graham 2009, Simon 2020) describes the role that medical device patents play early in the product lifecycle—often before regulatory approval—focusing on the foundation they provide for efficient exchanges of information and market transactions. Our paper builds on their work by (1) offering a description, grounded in reflection on the essential nature of the two regulatory frameworks, of the differing roles play by drug and device patents, and (2) offering an additional supportive data point in that, although device patenting is steadily increasing, eligible device companies generally do not bother seeking patent extensions. It also illustrates the role that regulatory design can play in dictating the value of patent length, which should be important for policy planners.
PubDate: Fri, 27 Jan 2023 14:03:51 PST
- Policy Implications of User-Generated Data Network Effects
Authors: Uri Y. Hacohen
Abstract: User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically examines a host of remedial approaches for policymakers to consider. These remedies include modernized public utility-style regulation, open access policies, and adjusted standards for anti-monopolization and merger scrutiny.
PubDate: Fri, 27 Jan 2023 14:03:48 PST
- Manipulating, Lying, and Engineering the Future
Authors: Michal Lavi
Abstract: Decision-making should reflect personal autonomy. Yet, it is not entirely an autonomous process. Influencing individuals’ decision-making is not new. It is and always has been the engine that drives markets, politics, and debates. However, in the digital marketplace of ideas the nature of influence is different in scale, scope, and depth. The asymmetry of information shapes a new model of surveillance capitalism. This model promises profits gained by behavioral information collected from consumers and personal targeting. The Internet of Things, Big Data and Artificial Intelligence open a new dimension for manipulation. In the age of Metaverse that would be mediated through virtual spaces and augmented reality manipulation is expected to get stronger. Such manipulation could be performed by either commercial corporations or governments, though this Article primarily focuses on the former, rather than the latter.Surveillance capitalism must depend on technology but also on marketing, as commercial entities push their goods and agendas unto their consumers. This new economic order presents benefits in the form of improved services, but it also has negative consequences: it treats individuals as instruments; it may infringe on individuals’ autonomy and future development; and it manipulates consumers to make commercial choices that could potentially harm their own welfare. Moreover, it may also hinder individuals’ free speech and erode some of the privileges enshrined in a democracy.What can be done to limit the negative consequences of hyper-manipulation in digital markets' Should the law impose limitations on digital influence' If so, how and when' This Article aims to answer these questions in the following manner:First, this Article demonstrates how companies influence decisions by collecting, analyzing, and manipulating information. Understanding the tools of the new economic order is the first step in developing legal policy that mitigates harm.Second, this Article analyzes the concept of manipulation. It explains how digital manipulation differs from traditional commercial influences in scope, scale, and depth. Since there are many forms of manipulation, an outright ban on manipulation is not possible, nor is it encouraged since it could undermine the very basis of free markets and even free speech. As a result, this Article proposes a limiting principle on entities identified in literature as “powerful commercial speakers,” focusing on regulating lies and misrepresentations of these entities. This Article outlines disclosure obligations of contextual elements of advertisements and imposes a duty of avoiding false information. In addition to administrative enforcement of commercial lies and misrepresentations, this Article advocates for a new remedy of compensation for autonomy infringement when a powerful speaker lies or disobeys mandated disclosure on products.Third, this Article proposes a complementary solution for long-term effects of manipulation. This solution does not focus on the manipulation itself, but rather offers limitations on data retention for commercial purposes. Such limitations can mitigate the depth of manipulation and may prevent commercial entities from shackling individuals to their past decisions.Fourth, this Article addresses possible objections to the proposed solutions, by demonstrating that they are not in conflict with the First Amendment, but rather promote freedom of expression.
PubDate: Fri, 27 Jan 2023 14:03:46 PST
- Lowering Barriers to Entry: YouTube, Fair Use, and the Copyright Claims
Board
Authors: Jamie O'Neill
Abstract: The Internet has transformed the landscape of media production by opening the doors of creation to anyone with a computer and an idea. YouTube allows for millions of individuals to post and disseminate content at a low cost to widespread audiences. But while the barriers to entry for content creation have lowered, the barriers to the legal copyright system have remained largely unmoved since YouTube’s inception. This Note seeks to explore the exact specifications of YouTube’s copyright system, both the one mandated by law and the one created voluntarily by YouTube, in order to understand where fair use stands in online copyright infringement detection. Additionally, the Note proposes the newly functional Copyright Claims Board as a way of lowering the barrier to entry into the legal system to allow for content creators to fight against online copyright abuse.
PubDate: Thu, 17 Nov 2022 14:44:10 PST
- The Legal Character and Practical Implementation of a TRIPS Waiver for
COVID-19 Vaccines
Authors: Andrew D. Mitchell et al.
Abstract: Almost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be open to Members under a COVID-19 waiver in its current or proposed forms, and the practical considerations for implementing them. To guide practical choices in selecting appropriate and adapted responses to public health and other crises, this article also investigates more theoretical questions about the nature of a waiver, its legal character and effect, and its interaction with other international agreements.
PubDate: Thu, 17 Nov 2022 14:44:07 PST
- Reconceptualizing Open Access to Theses and Dissertations
Authors: Orit Fischman Afori et al.
Abstract: The global COVID-19 crisis has turned public attention to the special need for accessing those cutting-edge studies that are needed for further scientific innovation. Theses and dissertations (TDs) are prominent examples of such studies. TDs are academic research projects conducted by graduate students to acquire a high academic degree, such as a PhD. They encompass not only knowledge about basic science but also knowledge that generates social and economic value for society. Therefore, access to TDs is imperative for promoting science and innovation.Open access to scientific publications has been in the focus of public policy discourse for two decades, but progress toward this end has been limited. As part of this discourse, there has been no systematic discussion of the special case of TDs and of the justification for adopting an open access publication policy toward them. The present study aims to fill this gap. We argue that the essence of TDs as unique outputs of academic research merits a special policy mandating the publication of these studies in open access format, subject to certain exceptions. This policy is underpinned by several arguments, which we develop in our study, based on historic and normative analysis. These considerations support reconceiving access to TDs using an open access approach designated particularly for them.To better understand current open access policies toward TDs, we conducted a limited semi-empirical investigation to collect information. Our findings confirm that–despite the growing awareness of the importance of an open access TDs policy–no standard policy exists. Therefore, we propose to establish a mandatory global policy and standardization regarding the publication of TDs in designated repositories, open to the public, that would generate together an “open world wide web of TDs.” Such a global framework would facilitate the progress of science and promote the public good worldwide. In the aftermath of the global COVID-19 crisis, it seems that the time is ripe for such a move at both international and national levels.
PubDate: Thu, 17 Nov 2022 14:44:05 PST
- I See Dead Patents: How Bugs in the Patent System Keep Expired Patents
Alive
Authors: Dinis Cheian
Abstract: One of the most important days in the life of a patent is the day it dies.The moment a patent dies, the patent owner loses her monopoly over her invention, ending the stream of income generated by that patent. Without an enforceable patent to protect the invention, the competitors and public can freely buy and sell copycat products that compete with the patent owner’s. Consumers reap the rewards in the form of more options and lower prices.Normally, those potential competitors must wait exactly twenty years from the date the patent application is filed with the United States Patent and Trademark Office (“Patent Office”). But if a patent owner is lucky, her competitors may wait even longer. The Patent Office may extend the life of a patent to compensate for certain delays in processing the application. Such an extension, known as a Patent Term Adjustment (“PTA”), is automatically calculated by computer software administered by the agency. But that software makes mistakes. Because the Patent Office will not double-check the computer’s calculations—unless the patent owner asks it to—those mistakes are rarely discovered. These skewed incentives lead to excessive PTA that exclusively benefits the patent owners. In some industries, such as pharmaceuticals, every additional day of patent life can result in millions of dollars of profit for the patent owner— profits that they may not be entitled to by law—and can delay the collapse of the price of the patented drug. It is little surprise that fierce litigation ensues over even a single day of patent life.This Article exposes those software mistakes and their impact for the first time. In this Article, based on my original analysis of the Patent Office’s data, I identify two previously undiscovered software bugs, observed in more than 27,000 patents. I demonstrate how these bugs result in excessive PTA of, sometimes, 60–90 days. Because there are undoubtedly more than the two identified ways in which the software can err, I recommend that patent litigators start routinely double-checking the PTA in order to save their clients millions in patent infringement damages. Entities seeking approval of generic drugs should similarly take note of these bugs as they may impact the date on which they need to file their application with the Food & Drug Administration. I also propose regulatory changes that would allow the Patent Office to improve the software by crowdsourcing the identification of bugs. Finally, I recommend a statutory change that would minimize the number of patents with excessive PTA.
PubDate: Thu, 17 Nov 2022 14:44:02 PST
- The Ethics of Unbranding
Authors: Jeremy N. Sheff
Abstract: This Essay explores the ethical implications of the phenomenon of "unbranding" that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory.
PubDate: Thu, 22 Sep 2022 15:25:42 PDT
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Open Access journal
