 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
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IP TheoryNumber of Followers: 11
 Open Access journal ISSN (Print) 2164-7410
Published by Indiana University [24 journals]
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- The Copyright Requirement of Human Authorship for Works Containing
Artificial Intelligence-Generated Content
Authors: Runhua Wang
Abstract: The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.Will the copyright regime continue to exclude AIGC from copyright protection, and what are the probable consequences of this exclusion' This essay revisits the Office’s responses to copyright applicants regarding AIGC and elucidates the standards applied by the Office. Based on these standards and their underlying rules, the essay provides suggestions to the Office and predicts the probable future of the authorship requirement in the copyright law.
PubDate: Thu, 02 May 2024 08:21:40 PDT
- Failure to Function: A Potential New Shield Against Trademark
Infringement'
Authors: Alyssa Yoshino
Abstract: The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second encourages the application of the doctrine separately from distinctiveness.This article serves two purposes: (1) to explore how alleged trademark infringers may use and interpret the existing failure to function doctrine to defend themselves and (2) to propose a framework for the failure to function doctrine that both makes sense of existing guidance and seeks to further a policy objective. Part I provides a brief overview of the statutory basis of the failure to function doctrine. Part II explores the merits and shortcomings of the current failure to function doctrine. Part III examines how a defendant may raise the existing failure to function doctrine to ultimately argue no trademark infringement. Part III expands on how three existing doctrines can be used to argue that a mark fails to function. Part IV proposes a middle ground between the Roberts and Cuatrecasas camps in which the failure to function doctrine, as currently defined by the USPTO, can be applied to trademark litigation. This middle ground takes a hybrid empirical-normative approach that considers policy in light of existing USPTO guidance and caselaw.
PubDate: Thu, 02 May 2024 08:21:36 PDT
- What's Not Natural Phenomena' Let's Consider a Three-Step
Innovative Concept Test for Composition of Matter Claims
Authors: Sydney Hancock
Abstract: Biotechnology innovation is rapidly growing, especially in the realm of biotech. This growth leads to questions about patent subject matter eligibility of natural phenomena. For example, currently the human genome and microbiome are being extensively studied, bacteriophages are being edited, animals are being cloned, and CRISPR is widespread. Additionally, composition of matter patent claims give the most protection to patent holders. Therefore, knowing when a natural phenomenon veers into human innovation is important for courts, lawyers, and innovators in the era of biotechnology and genetic engineering.Part I discusses the history of Supreme Court cases on natural phenomena subject matter eligibility, highlighting the important laws set forth by the Supreme Court. Part II discusses how the Federal Circuit has applied five-factor and two-step tests established in Diamond v. Chakrabarty and Mayo Collaborative Services v. Prometheus Laboratories, Inc., respectively. In addition, Part II discusses the lack of clarity the courts have when applying the second step of the test established in Mayo. Lastly, Part III proposes a three-step innovative concept test specifically for composition of matter claims directed toward natural phenomena and applies the innovative concept test to the claims directed at cloned animals in In Re Roslin (Edinburgh).Importantly, this paper focuses solely on composition of matter claims for natural phenomena. However, in Part I and Part II, some cases revolving around methods on laws of nature, natural phenomena, and abstract ideas are discussed.
PubDate: Mon, 25 Mar 2024 08:21:32 PDT
- A Closer Look at the "Eye" Test: The British Influence on Early American
Design Patent Infringement Law
Authors: Mark D. Janis
Abstract: The Supreme Court has asserted that “[t]he Patent Clause in our Constitution ‘was written against the backdrop’ of the English system.” That notion has a long lineage. In 1818, the author of an anonymous “Note on the Patent Laws,” widely assumed to be Justice Story, claimed that “[t]he patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject.”But these generalizations significantly overstate—and oversimplify—the influence of British law on the nascent American jurisprudence of patents. Early American jurists felt no reluctance about borrowing from British law, but they felt no evident obligation to do so, either. Faced with a paucity (or utter absence) of American precedents, judges in early American patent cases pretty well did whatever they pleased, sometimes relying on British decisions to fill in gaps in American law, sometimes distinguishing British from American law, and sometimes citing nothing at all.Thus, when the Supreme Court penned its first opinion on design patent infringement in the December 1871 term—Gorham v. White—it was not entirely surprising that the Court’s lone reference to authority was to a single case from the British courts, the Holdsworth case. Still, the Court’s reliance on Holdsworth is remarkable, for reasons I explore in this article.Part I briefly recounts the British lineage of American design patent law. Part II shows the ways in which the Court relied on the British Holdsworth case in deciding Gorham. Part III takes a closer look at Holdsworth’s influence on British design law, and compares that story to the story of the evolution of American rules for design patent infringement.
PubDate: Wed, 20 Mar 2024 07:36:40 PDT
- Direct to Consumer or Direct to All: Home DNA Tests and Lack of Privacy
Regulations in the United States
Authors: Karen J. Kukla
Abstract: Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT companies and the potential to abuse individuals’ privacy. Finally, Part III explores various solutions to resolve genetic privacy issues in the U.S. and advocates for the federal government to adopt a comprehensive regulatory framework like the EU or California.
PubDate: Mon, 13 Nov 2023 11:11:43 PST
- Taxation of Intellectual Property Litigation
Authors: Chitra A. Ram
Abstract: In the field of intellectual property law, few attorneys consider the tax implications of legal proceedings prior to undertaking litigation. In studying the interdisciplinary space between intellectual property law, litigation, and taxation practices, this Article hopes to further expand existing research on the scope and incentives behind intellectual property protection in the United States, the policies underlying the system of federal income taxation adopted by the United States, and the precedents upheld by courts in deciding matters at the nexus of intellectual property litigation costs, expenses, and taxation.
PubDate: Thu, 26 Oct 2023 10:56:19 PDT
- Protection and Prevention: The Shortcomings of U.S. Copyright Law in
Combatting Cultural Appropriation in the Fashion Industry
Authors: Luke E. Steffe
Abstract: American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their intellectual property. Copyright protection empowers native communities with both a sword and a shield, allowing for the protection and enforcement of their sacred art forms. By expanding current notions of authorship, copyright protection can extend to traditional designs and protect them from constant appropriation, and quite frankly, stealing by fashion labels. Moreover, granting a valid copyright to Indigenous designs in fashion must be accompanied by the explicit recognition of moral rights to provide comprehensive protection. In the United States, a suit for copyright infringement relies on the existence of a valid copyright; thus, the current law denying these protections to Native American and Alaskan Native communities leaves them without legal remedy when faced with the appropriation of their intellectual property. This Note proceeds in three Parts. Part One discusses Indigenous designs in fashion as a classification of Traditional Cultural Expressions (TCEs). Part Two analyzes the legal framework of U.S. copyright law as it stands and offers insight into the discrepancies between Western and Indigenous notions of intellectual property rights. Finally, Part Three suggests two legislative adaptations to account for these discrepancies and provide for the protection of Indigenous fashion designs, and all classes of TCEs, drawing upon international solutions to this issue.
PubDate: Tue, 24 Oct 2023 08:28:03 PDT
- Encouraging Public Access to Pharmaceuticals Through Modified Protection
of Clinical Trial Data
Authors: Scott M. Nolan II
Abstract: Part I of this Article investigates the development of pharmaceuticals and clinical trial data with a focus on patent and data protection. Part II evaluates the effects of protection and the challenges it poses to widespread public pharmaceutical access. Part III discusses two scholarly approaches to the public access issue that focus on clinical data protection and their associated challenges. In light of these scholarly works, Part IV suggests a new approach to clinical trial data protection that aims to improve public pharmaceutical access while maintaining the incentives to invent for drug developers.
PubDate: Tue, 24 Oct 2023 08:27:58 PDT
- Fair Use Failing the First Amendment' How the Parody and Satire Dichotomy
May be Stunting Political Discourse
Authors: Megan L. Wheeler
Abstract: The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First Amendment jurisprudence and that the First Amendment provides strong protection for dissident voices pertaining to public officials and figures so long as they are not overtly “intrusive.”5 While First Amendment almost whole-heartedly urges for freedom of robust debate and discord over public concern, copyright creates a property interest in speech and expression, particularly as it pertains to the expressive works of public figures. As a result, “copyright laws grant a copyright owner the right to suppress or abridge another person’s freedom of speech when that person seeks to express copyrighted material.”6 This Note will evaluate how the stark differences of approaches between the doctrines may be most at odds in the expressions of parody and satire as they are now regulated by copyright law’s First Amendment “fair use” “safety valve” (which results in overlooking entirely the First Amendment issues) and suggest that the Supreme Court overrule, or Congress pass an amendment to, the common law parody-satire distinction to carve out an exception for parody and satire to be evaluated at a First Amendment standard of scrutiny.This analysis will evaluate first, how satire is a utilitarian form of public and political expression recognized by the First Amendment; second, how the First Amendment defense operates in protecting comedic, humorous, and satiric forms of public comment; and, finally, how the First Amendment protection has been increasingly eclipsed by the intellectual property doctrines of copyright (and trademark) in litigation pertaining to such satirical works. Then, I will illustrate First Amendment protection analysis for satirical works through a survey of cases where the intellectual property doctrines certainly take legal priority over serious First Amendment concerns, and contrast those with cases that allow infringement or some form of copying that has little to no First Amendment value.
PubDate: Tue, 24 Oct 2023 08:27:54 PDT
- The Social Value of Intellectual Property
Authors: Alina Ng Boyte
PubDate: Tue, 01 Aug 2023 06:01:19 PDT
- Indian Pharmaceutical Patenting Under Section 3(D): A Model for Developing
Countries
Authors: Nicholas Eitsert
PubDate: Thu, 16 Mar 2023 13:55:55 PDT
- A Hot Spit-Take: Why the Supreme Court Will Hold That There Is No Privacy
Interest in Commercial DNA Data
Authors: Mounir Jamal
PubDate: Thu, 16 Mar 2023 13:36:20 PDT
- The Constitution Commandeth: Thou Shalt Not Protect the Same Subject
Matter Under Design Patent and Trade Dress Laws
Authors: Kenneth B. Germain et al.
Abstract: For many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.”
PubDate: Thu, 16 Mar 2023 13:01:22 PDT
- Marshalling Copyright Knowledge to Understand Four Decades of Berne
Authors: Peter K. Yu
Abstract: In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his return' Will he find the developments in the intervening decades interesting or surprising' What observations would he make had he not been frozen in 1978'
PubDate: Mon, 14 Nov 2022 12:31:06 PST
- Life After Google v. Oracle: Three Reflections on a Theme
Authors: Daryl Lim
Abstract: In 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects on the current state of software protection at the intersection of patent and copyright law in light of Alice Corp. Pty. v. CLS Bank Int’l.
PubDate: Mon, 10 Oct 2022 16:05:43 PDT
- Reconciling Copyright "Restoration" for Pre-1972 Foreign Sound Recordings
with the Classics Protection and Access Act
Authors: Tyler T. Ochoa
Abstract: When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: namely, sound recordings of foreign origin that were granted copyright under the umbrella of copyright “restoration” in the Uruguay Round Amendments Act of 1994. This raises an obvious question that Congress did not expressly address: is the new sui generis protection provided by the CPA a substitute for the existing copyright protection that such foreign sound recordings already enjoyed, or is it supplemental to the existing copyright protection that such foreign sound recordings already enjoyed, or does it simply not apply to such foreign sound recordings at all' This article examines the three alternatives and concludes that Congressional clarification is needed. Absent such clarification, it is possible that foreign sound recordings are simply not covered by the CPA at all, rendering its protections for digital music providers ineffective and depriving foreign sound recordings of the term extension provided by the CPA.
PubDate: Tue, 04 Oct 2022 08:11:05 PDT
- An Introduction to "Marshall Law"
Authors: IP Theory Volume 12 Editorial Board
PubDate: Wed, 28 Sep 2022 07:05:51 PDT
- Interview by Zach Shepard and Chris McMillan with David Gindler, Partner,
Milbank LLP, and Jasper Tran, Associate, Milbank LLP
PubDate: Thu, 31 Mar 2022 11:20:26 PDT
- Cyber Trespass and Property Concepts
Authors: Adam MacLeod
PubDate: Fri, 09 Jul 2021 12:15:58 PDT
- The Future of Female Inventors in the United States: A Comparative
Analysis to the Republic of Korea
Authors: Payton Hoff
PubDate: Mon, 08 Mar 2021 13:41:15 PST
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