Browsing by Subject "intellectual property"

Now showing 1 - 8 of 8
  • Thumbnail Image
    Item
    Accuracy or Efficiency: Has Grain Processing Made a Difference?
    (Minnesota Journal of Law, Science and Technology, 2014-02-20) Kidd, George David
    Since the Federal Circuit’s adoption of Panduit’s causation standard for establishing entitlement to lost profits damages in patent litigation, application of its noninfringing alternatives prong has lacked consistency. The court’s decision in Grain Processing Corp. v. American Maize-Products Co., however, created an additional contribution to the Panduit standard, thereby raising the evidentiary bar while significantly altering the noninfringing-alternative inquiry. Grain Processing has given the infringer a potentially powerful defensive mechanism in an area in which patentees are generally favored, even when some infringement may be socially desirable. Grain Processing allows for the potential avoidance of lost profit damages, so long as the alleged infringer shows that it had the necessary equipment, know-how, and experience to produce an acceptable, noninfringing substitute during the alleged infringement period. The Grain Processing decision, however, raises some debate. As a judicially interjected gloss on damages, the added ability to limit damage awards to a reasonable royalty could have been too drastic. A closer look demonstrates a precarious policy balance. On the one hand, increases in patent litigation might justify implementing an additional hurdle to potential damage awards in order to further incentivize innovation. Added rigor provided by Grain Processing may deter frivolous and expensive litigation that might be asserted by patentees to keep new innovators out of the market. But on the other hand, if a market participant does unlawfully infringe, it is certainly reasonable to believe that the infringer should pay appropriate damages for the encroachment on another’s intellectual property. Grain Processing’s lost-profit-limiting defense against a patentee’s claim of entitlement to lost profits damages may serve to deter potentially useful innovation by increasing costs shouldered by patentees in defending their patent rights. This Note analyzes six Federal Circuit cases appealing lost profits determinations, decided both before and after Grain Processing, and attempts to discern the impacts that Grain Processing has had on patentees’ entitlements to lost profits. This Note is organized in four parts. Part I provides the historical and substantive context necessary to understand the Grain Processing decision and examines important statutory changes, especially their subsequent interpretation, both before and after Grain Processing. Part II summarizes three pre-, as well as three post-Grain Processing cases. Parts III and IV dissect and analyze the holdings in these cases and evaluate Grain Processing’s impact on patent damages.
  • Thumbnail Image
    Item
    Applying the Fragmented Literal Similarity Test to Musical-Work and Sound-Recording Infringement: Correcting the Bridgeport Music, Inc. v. Dimension Films Legacy
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Carter, Mark
    Copyright law simultaneously protects recorded music in two distinct ways: as a musical work (i.e. composition) and as a sound recording. Copyright law protects all copyrightable works against unapproved reproduction (i.e., copying). Normally, the substantial similarity standard tests reproduction infringement. A sound-recording sample may be so short as to lack substantial similarity to the musical-work and thus not infringe it. But Bridgeport Music, Inc. v. Dimension Films chucked substantial similarity to hold that the same sample, however short, necessarily infringes the sound-recording reproduction right. This disparate copyright protection between musical works and sound recordings of the same sample has led to the “mashup problem.” Substantial similarity can be broken into two basic types: comprehensive nonliteral similarity and fragmented literal similarity. This paper proposes a framework for applying the fragmented literal similarity test to both musical-work and sound-recording reproduction infringement. First, it describes the framework for musical works based on the innate discretization of musical works as notes. Second, it describes breaking sound recordings into sound snippets and weighs the copied snippets’ quantitative and qualitative values to the copyrighted recording. Third, it outlines applying the framework to Swirsky v. Carey, Bridgeport, and Girl Talk’s sampling recordings.
  • Thumbnail Image
    Item
    Can an Inference of Intent to Induce Infringement of a Patent be Drawn Where Other Reasonable Inferences Exist? An Examination of the Use of Circumstantial Evidence to Prove Inducement of Infringement
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Gross, Roy
    This Article examines the type of evidence that can be used to prove if an alleged infringer is liable for inducement of infringement. Specifically, this article focuses on examining whether an inference based on circumstantial evidence can show whether the alleged infringer has the requisite state of mind to induce infringement and compares inferences and intent to induce infringement against intent in other areas of patent law.
  • Thumbnail Image
    Item
    DIOS MIO—The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law
    (2013-02-12) Murray, Michael D.
    To copy or not to copy, to exploit the famous celebrity image or not to exploit it; these are the questions. The message of the modern legal world communicated through multiple voices in the academy is that copying often is perfectly acceptable and even laudable. An artist or designer might conclude that it is both legal and ethical to use whatever you can, use whatever you can get away with, and use it until you get sued for using it. Yet plagiarism in the arts and sciences is nearly universally condemned. This Article proposes an ethical approach to the use of copyrighted works and names, images, and likenesses protected by the right of publicity. This approach is based on the ethical requirements of the law as synthesized from the cases presenting concrete narratives concerning fair and appropriate uses of protected works, names, and images. My thesis may be summed up in a revised form of the KISS principle (Keep it simple, stupid!) known as "DIOS MIO: Don’t Include Other’s Stuff or Modify It Obviously". Although simplified to this acronym, the ethical considerations concerning copyright-protected works and right of publicity-protected names and images are far from simple. The advice of this Article reflects the convergence of predominant purpose analysis and transformative/transformation analysis in copyright and right of publicity law that has led to a single set of recommendations for the legal and ethical treatment of protected works and celebrity names, images, and likenesses: seek first to create and not to copy or exploit, and create new expression by obvious modification of the old expression and content.
  • Thumbnail Image
    Item
    Essays on the effects of intellectual property rights on economic growth and production fragmentation, and the effects of unions on workplace safety
    (2016-07) Yang, Jooyoung
    The first essay entitled "What are the Effects of Intellectual Property Rights on Economic Growth? Empirical Analysis of East Asia, TRIPs and Development" estimates the effects of IPRs on economic growth in country level in four ways. First, I consider the growth effects of IPRs across all countries. Second, I consider whether the growth effects of IPRs are different for East Asia than for the rest of the world. Third, I consider whether the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) altered the growth effects of IPRs. Fourth, I assess whether there is a tipping point in the relationship between IPRs and growth that is related to the development level of countries. I find that there is a (net) positive relationship between IPRs and economic growth across the countries of the world while the effect is ambiguous in East Asia. Also, the findings show evidence that growth in the post-TRIPs period deviates from that of the entire period in a positive way; yet these positive effects are more modest for East Asia. Finally I find there is a break point that alters the effects of IPRs before and after the TRIPs. The second essay, "Effects of Strengthening Intellectual Property Rights on Global Value Chain", studies the effects of IPRs on exports especially, exports embodying exchange of intermediate inputs. First I consider how stronger IPRs affect exports in sectoral level in generalized factor-proportions framework. To consider an exchange of intermediate inputs, I construct a measure of value added contents of exports and gross exports using global input-output data from World Input-Output Database (WIOD). Second, I investigate how IPRs affect production fragmentation estimated as VAX ratio which represents production fragmentation. I employ the empirical approach in which exports at the industry level are explained as a function of country factor endowment and interactions with industry factor intensities. The evidence shows that a high level of patent protection is associated with high value added exports and gross exports in patent-intensive industries. Second, I find that higher patent protection leads less international fragmentation in patent-intensive industries. In the third essay entitled "Effects of Unionization on Workplace-Safety Enforcement: Regression-Discontinuity Evidence", I study how union certification affects the enforcement of workplace-safety laws. To generate credible causal estimates of certification effects, I employ regression discontinuity. I compare changes in outcomes in establishments where unions barely won representation elections to changes in outcomes in establishments where union barely lost such elections. The study combines two main datasets: the census of National Labor Relations Board (NLRB) representation elections and the Occupational Safety and Health Administrationâ s (OSHA) enforcement database since 1985. From the results, I find evidence of positive effects of union certification on establishmentâ s rate of OSHA inspection, the share of inspections carried out in the presence of a labor representative, violations cited, and penalties assessed.
  • Thumbnail Image
    Item
    The Preemptive Power of Federal Patent Law: A Framework for Analyzing State Antitrust Challenges to Pay-for-Delay Settlements
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Marsili, Caroline
    Since the passage of the Hatch-Waxman Act (the Act) in 1984, patent litigation in the pharmaceutical industry has generated a troubling breed of settlement agreements wherein the payment goes from patentee plaintiffs to allegedly infringing defendants, resulting in anticompetitive effects. The provisions of the Act, though intended to promote innovation and lower drug prices while expediting infringement litigation, tend to incentivize reverse payments, or pay-for-delay settlements. The settlements are often challenged by the Federal Trade Commission (FTC) and by private parties for violation of antitrust law. Thus, pay-for-delay settlements illustrate a tension between patent law and antitrust law. Since the adoption of the Act, courts have struggled to harmonize the two bodies of law with regard to pay-for-delay settlements, as evidenced by the widely divergent rulings on the legality of these settlements among regional circuit courts. In December 2012, the Supreme Court granted a writ of certiorari to review Federal Trade Commission v. Watson Pharmaceuticals, Inc., an Eleventh Circuit case favoring the pharmaceutical companies, and should enunciate the proper legal standard to apply to pay-for-delay settlements.
  • Thumbnail Image
    Item
    Standardized Terms and Conditions For Open Patenting
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Maggiolino, Mariateresa; Montagnani, Maria Lillà
    After providing a legal characterization of the open patenting phenomenon and discussing many of the empirical and theoretical experiences that relate to both Open Innovation and defensive patenting, this paper suggests standardized terms and conditions that a patent license should contain in order to foster both the free movement of patented knowledge and its business applications.
  • Thumbnail Image
    Item
    Trademark Unraveled: The U.S. Olympic Committee Versus Knitters of the World
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) David, Marcella
    A cease-and-desist letter is a tool commonly used by corporations in their efforts to vindicate the rights they hold in protected words and symbols associated with their business and reputation. Some defend the use of cease-and-desist letters as an effective vehicle. to quickly address legitimate claims of infringement. Others complain that the legitimate use of cease-and-desist letters is increasingly encroached upon by letters that grossly overstate legal claims in an effort to achieve results through intimidation. The proponents and detractors of the use of cease-and-desist letters likely would agree that the rights such letters seek to protect, the law interpreting those rights, and the use of the letters in protection of those rights are complicated by the exponential growth of e-commerce, and that the rise in do-it-yourself e-commerce only compounds the challenges.This article examines the consequences of a notorious and controversial cease-and-desist letter from several perspectives. The letter is a helpful mechanism to understand a specialized grant of trademark rights associated with the Olympic Games, and how those rights might fail to protect the varying interests of the trademark holders, commercial actors, and the public; some modest suggestions explore alternative ways of conceptualizing and vindicating the rights at stake. The article concludes by assessing the letter and subsequent controversy for helpful lessons on lawyering, including the benefits of careful advocacy and creative business approaches, particularly in an e-commerce environment.