Volume 26, Number 1
      •   (Non)obviousness of Claims to Genetic Sequences: Finding the Middle Ground  p. 1
      •   Business Methods and Patentable Subject Matter following In Re Bilski: is “Anything Under the Sun Made by . . .  p. 35
      •   Copyright, Free Expression, and the Enforceability of “Personal Use-only” and Other Use-Restrictive . . .  p. 85
      •   Pharmaceutical Reverse Payment Settlements: Presumptions, Procedural Burdens, and Covenants Not to Sue . . .  p. 141
 
Volume 26, Number 2
      •   The 1909 Copyright Act In International Context  p. 185
      •   Copyright’s First Compulsory License  p. 215
      •   The Evolving Role Of “For Profit” Use In Copyright Law: Lessons from the 1909 Act  p. 255
      •   Protection For Works Of Foreign Origin Under The 1909 Copyright Act  p. 285
 
Volume 26, Number 3
      •   Relief For IP Rights Infringement Is Primarily Equitable: How American Legal Education Is Short-Changing The . . .  p. 313
      •   Prospectively Curing Inequitable Conduct Through Reissue: Reconsidering A “Well-Settled Principle”  p. 353
      •   Finding The Patent Infringement “Mastermind”: The “Control Or Direction” Standard For “Joint” . . .  p. 411
      •   Intellectual Property In Standards: Does Antitrust Law Impose A Duty To Disclose (Even If The . . .  p. 459
 
Volume 26, Number 4
      •   The Role of Patent Protection in (Clean/Green) Technology Transfer  p. 487
      •   Clean Tech Reality Check: Nine International Green Technology Transfer Deals Unhindered By Intellectual . . .  p. 533
      •   On-Site Renewable Energy And Public Finance: How and Why Municipal Bond Financing is the Key to Propogating . . .  p. 559
      •   Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship  p. 591
      •   WIkipedia and the European Union Database Directive  p. 631

(Non)obviousness of Claims to Genetic Sequences: Finding the Middle Ground  ▲

Authors: Mark Polyakov and Eugene Goryunov

Abstract

     In KSR Int’l Co. v. Teleflex Inc., the Supreme Court restored the “expansive and flexible approach” to the obviousness inquiry required under Title 35 of the United States Code. This article concludes that the KSR decision should prompt changes in the Court of Appeals for the Federal Circuit’s (CAFC) jurisprudence on the obviousness standard. The article reviews the many CAFC rulings on this standard, from In re O’Farrell through In re Deuel, showing how the CAFC departed from the standard obviousness inquiry. The focus then turns to the KSR decision and shows that the analysis of the CAFC did not follow a proper analysis, even where the results would have remained unchanged. Finally, this article propose an expansive yet flexible test for evaluating obviousness of claims to genetic sequences to aid the CAFC in its obviousness analysis.

    amino claim court deuel known obvious obviousness prior protein sequence

Volume 26
Issue 1
Page 1

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Business Methods and Patentable Subject Matter following In Re Bilski: is “Anything Under the Sun Made by Man” Really Patentable?  ▲

Authors: Robert A. McFarlane and Robert G. Litts

Abstract

     The Federal Circuit’s decision in In re Bilski sought to answer once and for all whether, and to what extent, business methods may be patented and to articulate the standard that governs the patentability of all processes. The court’s majority opinion both confirmed that there is no exclusion preventing the patenting of business methods and announced a new “machine-or-transformation” test to analyze patents on processes in all fields. Given the controversy surrounding this decision, it is not surprising that the Supreme Court subsequently granted certiorari.
     This article first reviews the Federal Circuit’s Bilski decision, including its historical context and its ramifications in defining what may be patented. It then considers the questions facing the Supreme Court by addressing some of the criticisms of the Federal Circuit’s majority decision. Finally, it offers a solution that conforms to Supreme Court precedent and Constitutional requirements.

    bilski business claim court machine method patent process subject transformation

Volume 26
Issue 1
Page 35

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Copyright, Free Expression, and the Enforceability of “Personal Use-only” and Other Use-Restrictive Online Terms  ▲

Author: Bradley E. Abruzzi

Abstract

     Expression is simultaneously creative and referential. It is copyright’s task both to supply ownership incentives sufficient to promote the creation of expressive works, and to carve out creative (and for that matter, expressive) space from those rights for subsequent creators. Fair use and uses of copyrighted content that the Copyright Act has traditionally privileged are therefore themselves critical to expression. Purveyors of expressive content on the World Wide Web would challenge copyright’s careful balance by conditioning access to content on the user’s acceptance of nonnegotiable, contractually binding terms of use (“TOU”). Website TOU commonly impose “personal use-only” restrictions on users that prohibit uses copyright law would permit. If enforced against critical and scholarly uses of web content, these TOU could undermine the great democratizing potential of the come-one/come-all Internet. Trends in the case law suggest that express and conflict preemption and unconscionability defenses will likely be unavailing to authors who engage in prohibited uses of TOU-restricted web content — even if these uses would be “fair” under the Copyright Act. Although individual parties should be free to negotiate away copyright-approved uses in their dealings with content owners, courts should not be constrained in finding TOU unconscionable or preempted by copyright, when circumstances suggest the content purveyor means to augment its rights unilaterally through nonnegotiable bulk “contracting.” Indeed, when a copyright-approved use of content subject to TOU is expressive in nature, courts should consider a possible constitutional defense to enforcement of the TOU.

    agreement content contract copyright court license right software term website

Volume 26
Issue 1
Page 85

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Pharmaceutical Reverse Payment Settlements: Presumptions, Procedural Burdens, and Covenants Not to Sue Generic Drug Manufacturers  ▲

Author: Catherine J.K. Sandoval

Abstract

     This Article analyzes recent developments in antitrust law, focusing on agreements between pharmaceutical patent holders and generic drug manufacturers that require a generic manufacturer to delay its market entry in exchange for a payment or other consideration from the patent holder. A predictable consequence of settlements that delay the marketing of a generic drug is that prices for the patented drug will remain higher than if the generic competitor had prevailed in its challenge to the patent’s validity or the patent holder had failed to show that the generic infringed on its patent. Analysis of the legality of these settlements has huge consequences for drug competition, health care costs, the average American family budget, the law, and public policy.

    agreement antitrust competition filer generic holder infringement litigation patent settlement

Volume 26
Issue 1
Page 141

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The 1909 Copyright Act In International Context  ▲

Author: Daniel Gervais

Abstract

     The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in par-ticular for the introduction of a broad prohibition against formalities concerning the “exercise and enjoyment” of copyright. 1909 was also just one year before a new copyright bill was brought before the Brit-ish Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many countries, including Australia, Canada, Israel, New Zealand, Nigeria, and South Africa.
     In this Essay, I situate the Berlin Act within the framework of the evolution of the Berne Convention from 1886 until the current 1971 Act and explore the role played by the United States, not as much as a participant in the Berlin Conference but by the way its actions influ-enced the actions of others. To this end, I discuss sequentially the emergence and evolution of the Berne Convention, and then two areas worthy of deeper analyses when considered against the back-drop of the 1909 Act, namely the prohibition against formalities and the rule imposing retroactive application of the Convention.

    berne conference convention copyright country formality protection right state united

Volume 26
Issue 2
Page 185

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Copyright’s First Compulsory License  ▲

Author: Howard B. Abrams

Abstract

     This article discusses the development of the compulsory license for making phonorecords of nondramatic musical works in the Copyright Act of 1909 and the continued existence of this compulsory license in subsequent iterations of copyright law. Drawing on this background, the paper then argues that, however useful the compulsory license may have been in the past, it is no longer a useful means to promote the creation of intellectual works and should be repealed.
     In particular, the paper highlights several factors that compel the conclusion that compulsory licenses are an outdated concept and should be repealed. In particular, the article focuses on how compulsory licenses deviate from the traditional bargain struck by copyright law, the lack of moral rights under the present system, the debatability of the assertion that repeal of the compulsory license will result in a sufficient quantity of exclusive licenses that will not only be exclusive but will harm the public interest, the lack of anti-monopoly concerns in the modern marketplace, and a belief that private negotiation will result in fairer treatment of the authors of non-dramatic musical compositions.

    company compulsory copyright license music musical publisher record recording royalty

Volume 26
Issue 2
Page 215

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The Evolving Role Of “For Profit” Use In Copyright Law: Lessons from the 1909 Act  ▲

Author: Lydia Pallas Loren

Abstract

     The transformation of copyright law from a law that regulated only commercial actors to one that regulates everyone was the result not only of technological developments, but also a fundamental change in the definition of the rights granted to copyright owners. The 1909 Act stands in the middle of this change, with some rights granted to the copyright owner defined by the “for profit” nature of the use and other rights granted without this restriction. This article examines the reasons for the “for profit” restrictions on rights contained in the 1909 Act and lessons we can learn from defining the rights of a copyright owner with a “for profit” restriction.
     Part I of this article explores the 1909 Act and its legislative history, demonstrating that the “for profit” limitation on public performance rights for certain types of works was meant to preserve a space for the free enjoyment of music by the public. Permitting a certain amount of “free riding” is critical if copyright law is to serve its constitutional mandate to promote progress in knowledge and learning. Congress used the defendant’s “for profit” use as a proxy for those uses most likely to cause commercial harm to a plaintiff. In the end, Congress was trying to shape the rights of a copyright owner to ensure that actionable infringement resulted only from uses that interfered with a copyright owner’s commercial exploitation of the work and thereby affected the incentive to create new works. Part II examines how the judicial interpretation of the “for profit” limitation focused attention on the potential “free riding” nature of the use, whether or not the use caused commercial harm to the copyright owner. In Part III the article suggests that the experience with the “for profit” limitation under the 1909 Act counsels that to be more consistent with the incentive purpose of copyright, the law should require copyright owners to demonstrate commercial harm in order to prove infringement for certain types of uses.

    congress copyright court music musical owner performance profit public right

Volume 26
Issue 2
Page 255

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Protection For Works Of Foreign Origin Under The 1909 Copyright Act  ▲

Author: Tyler T. Ochoa

Abstract

     One of the principal goals of the 1909 Copyright Act was to simplify and streamline the formalities required to obtain copyright protection. Before the 1909 Copyright Act, authors had to register their works before publication in order to be eligible for copyright protection; and notice of the registration had to be included on all copies published in the United States. If a work was published anywhere in the world before registration, or if the notice was omitted when the work was published domestically, the work went into the public domain. Under the 1909 Act, however, authors only had to publish their works with proper copyright notice in order to be eligible for copyright protection.
     This change introduced an ambiguity with regard to works first published outside the Untied States. If a work had to be published with proper notice to receive copyright protection, but notice was required only on copies published in the United States, what was the effect if a work was first published outside the United States without proper notice? Some courts held that mere publication in a country with whom the U.S. had copyright relations was sufficient to invest a work with a federal statutory copyright; while others held that such a work neither received a federal statutory copyright nor was it placed in the public domain by foreign publication without notice. This uncertainty can result in copyright terms that differ by as much as one hundred years, depending on how the ambiguity is resolved.
     In this article, the author concludes that Congress most likely intended that works first published outside the United States without proper notice were not eligible for copyright protection and became part of the public domain. This result means that such works were eligible for the copyright restoration for works of foreign origin that became effective in 1996, and that parties utilizing such works should be treated as reliance parties under the restoration statute, rather than as ordinary infringers.

    copyright first foreign notice protection publication published state united without

Volume 26
Issue 2
Page 285

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Relief For IP Rights Infringement Is Primarily Equitable: How American Legal Education Is Short-Changing The 21st Century Corporate Litigator  ▲

Author: Charles E. Rounds, Jr.

Abstract

     This article examines the equitable remedy of restitution for unjust enrichment in the IP rights infringement context. Instruction in Equity’s “notion” of unjust enrichment and the remedy for it was once standard fare in the American law school. That is no longer the case, even though “[a]s the American economy completes its transition to a data economy, unjust enrichment in equity will increasingly become the principal remedy to protect economic interests.”  Law school-sponsored litigation clinics are fine, but not at the expense of basic doctrine. Though this primer covers critical common law doctrine that every IP rights litigator needs to have internalized, the term common law being employed broadly in juxtaposition to the civil law tradition, a primer is no substitute for systematic instruction in Equity’s institutions and remedies; the core fiduciary relationships of agency and trust; and the fiduciary principle generally. Particularly in the IP rights infringement context, “restitution principles serve to illuminate legislative purpose; to identify the points at which a given statute varies a rule that would otherwise obtain at common law; and as an aid to interpretation of a doubtful case.”

    constructive equitable equity remedy restatement restitution right trust trustee unjust

Volume 26
Issue 3
Page 313

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Prospectively Curing Inequitable Conduct Through Reissue: Reconsidering A “Well-Settled Principle”  ▲

Author: Daniel A. Klein

Abstract

     Inequitable conduct is an equitable doctrine that renders a patent unenforceable upon a finding that the patentee has breached the duty of candor and good faith owed to the U.S. Patent and Trademark Office during prosecution of a patent application. In Aventis Pharma S.A. v. Amphastar Pharmaceuticals, the Court of Appeals for the Federal Circuit held that Aventis’s asserted patent was unenforceable for inequitable conduct. However, prior to filing its infringement action, Aventis had filed an application to reissue its patent, and in its reissue application had disavowed reliance on the very statements on which the assertion of inequitable conduct was based. The reissue patent issued prior to the trial court’s judgment, but the court simply extended the judgment of unenforceability of the original patent to the reissue patent. The Federal Circuit affirmed, citing the “well-settled principle” that a reissue proceeding cannot rehabilitate a patent held to be unenforceable due to inequitable conduct.
     The Aventis court dispensed with the significance of the reissue patent with no more than a footnote. However, a careful reading of the opinions cited by the court reveals that the majority improperly relied on dicta to announce a principle broader than the precedent warrants. The Federal Circuit’s statements on this issue in earlier, uncited opinions similarly demonstrate a misreading of precedent. Moreover, not only is the public interest served by allowing patentees to prospectively cure “inequitable” conduct in post-grant proceedings, but the Aventis rule may actually encourage behavior the law should work to dissuade. Consideration of the timing of relevant events leads to a framework in which patentees are permitted to employ reissue to cure conduct—specifically, omissions and misrepresentations—that would otherwise be judged inequitable conduct, under limited circumstances. Application of the proposed analysis might have lead to a different result in Aventis and other cases, and should lead to a more just result for both the public and the patentee in future actions.

    application conduct court during examiner inequitable patent patentee reference reissue

Volume 26
Issue 3
Page 353

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Finding The Patent Infringement “Mastermind”: The “Control Or Direction” Standard For “Joint” Infringement  ▲

Author: Keith Jaasma

Abstract

     In its 2007 decision in BMC Resources, Inc., v. Paymentech, L.P., the Federal Circuit attempted to clarify the law regarding liability for direct patent infringement under § 271(a) where the steps of a patent claim are performed by more than one party. Specifically, the Federal Circuit held that a defendant is not responsible for steps in a patent claim performed by a third party, and consequently is not liable for direct patent infringement where the defendant did not “control or direct each step of the patented process.” However, the Federal Circuit provided only limited guidance regarding how to determine whether a defendant has exerted sufficient control or direction over a third party such that the defendant could be liable for the acts of the third party.
     In 2008 in Muniauction, Inc. v. Thomson Corporation, the Federal Circuit may have introduced some unintended confusion into the joint infringement analysis by stating that the plaintiff had failed to identify a legal theory where the defendant “might be vicariously liable for the actions of” the third parties that performed some of the steps of the patented methods. At least one district court since has read the holding of Muniauction as requiring a patentee to prove that a defendant is vicariously liable for the actions of a third party in order to satisfy the “control or direction” test.
     Liability for “joint” infringement should not be limited to situations in which a plaintiff can prove that a defendant is vicariously liable for the acts of third parties, and agency law provides significant guidance regarding situations in which “control or direction” should be found. This article suggests tests for simplifying the determination as to whether a defendant has satisfied the “control or direction” test. Cases involving acts performed by a defendant’s customers should be viewed differently from cases involving other business relationships, such as those between a defendant and suppliers, subcontractors, or other vendors. Rarely will a defendant be found to assert sufficient “control or direction” over its customers such that steps performed by customers will support an infringement claim against the defendant. For other types of business relationships, a test consisting of two questions would help courts and practitioners determine whether there is sufficient control or direction over the third party’s performance of a step in a patent claim such that the alleged infringer should be responsible for the third party’s acts:
     Does the defendant’s alleged “control or direction” relate to the specific technology accused of infringement?
     If so, did the defendant require the third party to perform the relevant limitations of the claim in the manner provided for in those limitations?
     If the answer to both of these questions is “yes,” then the alleged infringer should be held liable for steps performed by third parties. Applying this test would greatly simplify the “control or direction” inquiry and lead to more consistent results in cases involving joint infringement.

    claim control court defendant direct direction infringement patent step third

Volume 26
Issue 3
Page 411

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Intellectual Property In Standards: Does Antitrust Law Impose A Duty To Disclose (Even If The Standards-Setting  ▲

Author: Krista S. Jacobsen

Abstract

     An engineer sits quietly in a standards-setting organization (SSO) meeting at which technical proposals for a new high-speed digital subscriber line (DSL) modem are presented and discussed as part of the process of generating a new standard. He watches as one of his company’s fiercest rivals makes a proposal for how the modem at the customer’s premises will send diagnostic information to the modem at the telephone company’s central office. To his surprise, the proposal incorporates the very data protocol for which he and a colleague filed a patent application three months earlier. The proposal is well received by the other attendees, and after a short discussion, the group agrees to include in the standard the proposal that uses the method disclosed in the engineer’s patent application. As the editor of the standard records the agreement on the issues list, the engineer smiles, knowing that implementation of his soon-to-be-patented invention will be essential for anyone who wishes to build modems compliant with the standard.
     Does he have to say anything to the other SSO participants?
     Courts have found that if an SSO has a policy requiring its members to disclose information about their existing patents and pending patent applications, thus creating an obligation to speak, a patent holder who remains silent can be estopped from enforcing its patents against those who wish to implement the standard.**But what if the SSO has no policy requiring its members to disclose information about their intellectual property (IP) rights? Does the engineer who attends the SSO meeting and knows that the SSO is incorporating his invention in the standard still have an obligation to tell the other SSO participants about the pending patent? If he says nothing, and the standard that eventually issues does indeed contain his innovation, can he refuse to license the patent to those who wish to build standard-compliant equipment? If he agrees to license the patent, can he demand higher royalties than he would be able to collect for that patent absent the standard? This paper considers these questions.

    essential holder kodak license market patent power product standard technology

Volume 26
Issue 3
Page 459

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The Role of Patent Protection in (Clean/Green) Technology Transfer  ▲

Authors: Bronwyn H. Hall and Christian Helmers

Abstract

Global climate change mitigation will require the development and diffusion of a large number and variety of new technologies. How will patent protection affect this process? In this paper we first review the evidence on the role of patents for innovation and international technology transfer in general. The literature suggests that patent protection in a host country encourages technology transfer to that country but that its impact on innovation and development is much more ambiguous. We then discuss the implications of these findings and other technology-specific evidence for the diffusion of climate change-related technologies. We conclude that the “double externality” problem, that is the presence of both environmental and knowledge externalities, implies that IP may not be the ideal and cannot be the only policy instrument to encourage innovation in this area and that the range and variety of green technologies as well as the need for local adaptation of technologies means that patent protection may be neither available nor useful in some settings.

   

Volume 26
Issue 4
Page 487

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Clean Tech Reality Check: Nine International Green Technology Transfer Deals Unhindered By Intellectual Property Rights  ▲

Author: Eric Lane

Abstract

As diplomats and climate change negotiators discussed patents
as a barrier to international transfer of clean technologies in December 2009 in Copenhagen, California solar thermal startup eSolar was finalizing a deal to build at least 2 gigawatts of solar thermal power plants in China. At the time the largest solar thermal deal ever, it was structured as a master licensing agreement with Chinese electrical power equipment manufacturer Penglai Electric. The eSolar-Penglai deal is just one of many recent partnerships, joint ventures, and licensing arrangements between clean technology firms in developed countries and investors, developers, utilities and builders in developing countries. Despite the reality on the ground, the United Nations Framework Convention on Climate Change (“UNFCCC”) and the developing country parties to the UNFCCC treaty have put forth a host of policy proposals to weaken or even eliminate IP rights in clean technologies. This article seeks to provide a clean tech reality check by highlighting nine significant clean technology transfers between developed countries and developing countries in the one-year period leading up to the Copenhagen talks. This article observes that IP rights were not a barrier to any of these deals and may have helped facilitate the technology transfer by providing exclusivity in the developing country market.

   

Volume 26
Issue 4
Page 533

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On-Site Renewable Energy And Public Finance: How and Why Municipal Bond Financing is the Key to Propogating Access to On-Site Renewable Energy and Energy Efficiency  ▲

Authors: Jason R. Wiener and Christian Alexander

Abstract

Notwithstanding the expansion of financing options for on-site
renewable energy and energy efficiency improvements, in the United States there remain systemic obstacles to more widespread access to financing. Chief among these are the relatively constrained legal and financial lending parameters inherent in private sector equity-based financing. Private sector equity financing tends to remain available primarily to high net worth or high income homeowners. Glaring in its absence is the inability of low income homeowners to access lending through the credit markets to finance renewable energy and energy efficiency projects.
This Article surveys and explains the financing options available, including traditional home equity loans, third party power purchase agreements, and municipal bond financed special assessment districts, and assesses their legal advantages and disadvantages. This article concludes that municipal bond financing is best structured and positioned to offer maximum access to financing for renewable energy and energy efficiency projects. Specifically, property assessed clean energy programs, which utilize specially geared special assessment districts called energy financing districts, hold the potential to address inequitable distribution of
renewable energy and energy efficiency access.

   

Volume 26
Issue 4
Page 559

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Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship  ▲

Author: Timothy K. Armstrong

Abstract

his short essay surveys the state of open access to primary legal source materials (statutes, judicial opinions and the like) and legal scholarship. The ongoing digitization phenomenon (illustrated, although by no means typified, by massive scanning endeavors such as the Google Books project and the Library of Congress's efforts to digitize United States historical documents) has made a wealth of information, including legal information, freely available online, and a number of open-access collections of legal source materials have been created. Many of these collections, however, suffer from similar flaws: they devote too much effort to collecting case law rather than other authorities, they overemphasize recent works (especially those originally created in digital form), they do not adequately hyperlink between related documents in the collection, their citator functions are haphazard and rudimentary, and they do not enable easy user authentication against official reference sources. The essay explores whether some of these problems might be
alleviated by enlarging the pool of contributors who are working to bring paper records into the digital era. The same "peer production" process that has allowed far-flung communities of volunteers to build large-scale informational goods like the Wikipedia encyclopedia or the Linux operating system might be harnessed to build a digital library. The essay critically reviews two projects that have sought to "crowdsource" proofreading and archiving of texts: Distributed Proofreaders, a project frequently held up as a model in the academic literature on peer production; and Wikisource, a sister site of Wikipedia that improves on Distributed Proofreaders in a number of ways. The essay concludes by offering a few illustrations meant to show the potential for using Wikisource as an open-access repository for primary source materials and scholarship, and considers some possible drawbacks of the crowdsourced approach.

   

Volume 26
Issue 4
Page 591

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WIkipedia and the European Union Database Directive  ▲

Author: Jacqueline D. Lipton

Abstract

“Web 2.0” and “User Generated Content” (UGC) are the new
buzzwords in cyberspace. In recent years, law and policy makers have struggled to keep pace with the needs of digital natives in terms of online content control in the new participatory web culture. Much of the discourse about intellectual property rights in this context revolves around copyright law; for example, who owns copyright in works generated by multiple people, and what happens when these joint authored works borrow from existing copyright works in terms of derivative works rights and the fair use defense. Many works compiled by groups are subject to creative commons licenses and may only be reproduced on similar terms. While many of these copyright questions remain unanswered, little attention has yet been given to the application of the sui generis database right created under the European Union Database Directive in the Web 2.0 context. This article takes up issues relating to the application of the Database Directive to compilations of data in the Web 2.0 universe. Wikipedia forms the basis of a case study for the purposes of examining the extent to which the Directive may impact the operations of Web 2.0 services involving significant amounts of UGC.

   

Volume 26
Issue 4
Page 631

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