Pub Date : 2017-07-05DOI: 10.4324/9781315095493-10
Adrienne N. Kitchen
{"title":"Go to Jail - Do Not Pass Go, Do Not Pay Civil Damages: The United States’ Hesitation Towards the International Convention on Cybercrime’s Copyright Provisions, 1 J. Marshall Rev. Intell. Prop. L. 364 (2002)","authors":"Adrienne N. Kitchen","doi":"10.4324/9781315095493-10","DOIUrl":"https://doi.org/10.4324/9781315095493-10","url":null,"abstract":"","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"130 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122921049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While most empirical studies of claim construction in the Federal Circuit focus on the set of all Federal Circuit claim construction cases, Professor Krause and Ms. Auyang focus on two revealing subsets of cases: cases involving dissents (“close cases”) and cases in which the Federal Circuit reverses the district court (“reversals”). This focus brings results-affecting differences in approach among the judges to light. The close cases data show a wide disparity among the Federal Circuit judges in terms of how likely they are to adopt a broadening (as opposed to a narrowing) claim construction, with some judges showing a “broadening rate” of over 90%, and some judges showing a narrowing rate of over 80%. The close cases data also shows how factors like “pro-patent” and “pro-affirm” vary widely across the judges. Until the Federal Circuit recognizes these internal differences and eradicates them, claim construction will continue to be panel dependent and unpredictable. The reversals data shows that district courts consistently vote in a narrowing direction, and, more specifically, in a direction that, much more often than not, enables them to dispose of cases on summary judgment. This tendency argues strongly against any proposals for broad deference for district courts in claim construction. The authors argue that the Federal Circuit judges should seek to understand the differences between each other within the court, and work to promote a single unified approach. As a teaching tool for district courts -- and to help keep track of where differences in approach exist -- the authors recommend that the Federal Circuit adopt a simple algorithm for claim construction cases, and they provide one such example of an algorithm.
{"title":"What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit, 12 J. Marshall Rev. Intell. Prop. L. 583 (2013)","authors":"Thomas W. Krause, Heather Auyang","doi":"10.2139/SSRN.2257498","DOIUrl":"https://doi.org/10.2139/SSRN.2257498","url":null,"abstract":"While most empirical studies of claim construction in the Federal Circuit focus on the set of all Federal Circuit claim construction cases, Professor Krause and Ms. Auyang focus on two revealing subsets of cases: cases involving dissents (“close cases”) and cases in which the Federal Circuit reverses the district court (“reversals”). This focus brings results-affecting differences in approach among the judges to light. The close cases data show a wide disparity among the Federal Circuit judges in terms of how likely they are to adopt a broadening (as opposed to a narrowing) claim construction, with some judges showing a “broadening rate” of over 90%, and some judges showing a narrowing rate of over 80%. The close cases data also shows how factors like “pro-patent” and “pro-affirm” vary widely across the judges. Until the Federal Circuit recognizes these internal differences and eradicates them, claim construction will continue to be panel dependent and unpredictable. The reversals data shows that district courts consistently vote in a narrowing direction, and, more specifically, in a direction that, much more often than not, enables them to dispose of cases on summary judgment. This tendency argues strongly against any proposals for broad deference for district courts in claim construction. The authors argue that the Federal Circuit judges should seek to understand the differences between each other within the court, and work to promote a single unified approach. As a teaching tool for district courts -- and to help keep track of where differences in approach exist -- the authors recommend that the Federal Circuit adopt a simple algorithm for claim construction cases, and they provide one such example of an algorithm.","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124974700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies that regulate creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimesis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation — even plagiarism — and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The cumulative and collaborative character of the oral formulaic tradition dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of that tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of similar dynamics of sharing and recombination of formulas and traditional patterns. Continuations, free re-use, and the re-modeling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature powerful vehicles in propelling cross-country circulation of culture.The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were nuisances to society.Rereading the history of aesthetics is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity parallel the features of digital networked creativity. As in the oral-formulaic tradition, digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. Additionally, the formula — the single unit to be used and reused, worked and re-worked — is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the enclosure of knowled
{"title":"Rediscovering Cumulative Creativity From the Oral Formulaic Tradition to Digital Remix: Can I Get a Witness?, 13 J. Marshall Rev. Intell. Prop. L. 341 (2014)","authors":"Giancarlo F. Frosio","doi":"10.2139/SSRN.2199210","DOIUrl":"https://doi.org/10.2139/SSRN.2199210","url":null,"abstract":"For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies that regulate creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimesis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation — even plagiarism — and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The cumulative and collaborative character of the oral formulaic tradition dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of that tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of similar dynamics of sharing and recombination of formulas and traditional patterns. Continuations, free re-use, and the re-modeling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature powerful vehicles in propelling cross-country circulation of culture.The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were nuisances to society.Rereading the history of aesthetics is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity parallel the features of digital networked creativity. As in the oral-formulaic tradition, digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. Additionally, the formula — the single unit to be used and reused, worked and re-worked — is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the enclosure of knowled","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125483956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2011, the combination of both Therasense, Inc. v. Becton Dickinson and Co.1 and the enactment of the America Invents Act (AIA)2 effectively eliminated the judicial doctrine of inequitable conduct in patent cases. In order to obtain a patent, applicants have been long had a duty of candor before the U.S. Patent and Trademark Office (PTO).3 Inventors are often the most knowledgeable about why their invention is new and nonobvious over the prior art, which are essential requirements for patentability.4 Candid correspondence with the PTO is essential to preserving integrity in the ex parte patenting process, where no other party participates to induce full disclosure. The doctrine of inequitable conduct, historically, has been the key gatekeeper policing the patent system’s integrity.5 Now, with its virtual elimination, is there still sufficient incentive to comply with the “duty of candor”6 principles that have traditionally served the patenting process? It is without question, the use of inequitable conduct to police the duty of candor had been abused over the years. But, perhaps this cure is worse than the disease.
2011年，Therasense, Inc. v. Becton Dickinson and co .一案和《美国发明法》(AIA)的颁布有效地消除了专利案件中不公平行为的司法原则。2 .长期以来，为了获得专利，申请人在美国专利商标局(PTO)面前都有诚实的义务发明人通常最了解为什么他们的发明比现有技术更新颖和不明显，而这些是可专利性的基本要求在没有其他当事人参与以诱导充分披露的情况下，与专利商标局的坦诚通信对于保持单方面专利程序的完整性至关重要。从历史上看，不公平行为原则一直是监督专利制度完整性的关键看门人现在，随着它的实际取消，是否仍然有足够的动机去遵守传统上为专利程序服务的“坦率义务”原则?毫无疑问，多年来滥用不公平的行为来监督坦率的义务。但是，也许这种疗法比疾病本身更糟糕。
{"title":"“There’s a Hole in the Bucket:” The Effective Elimination of the Inequitable Conduct Doctrine,11 J. Marshall Rev. Intell. Prop. L. 717 (2012)","authors":"K. E. White","doi":"10.2139/SSRN.2051029","DOIUrl":"https://doi.org/10.2139/SSRN.2051029","url":null,"abstract":"In 2011, the combination of both Therasense, Inc. v. Becton Dickinson and Co.1 and the enactment of the America Invents Act (AIA)2 effectively eliminated the judicial doctrine of inequitable conduct in patent cases. In order to obtain a patent, applicants have been long had a duty of candor before the U.S. Patent and Trademark Office (PTO).3 Inventors are often the most knowledgeable about why their invention is new and nonobvious over the prior art, which are essential requirements for patentability.4 Candid correspondence with the PTO is essential to preserving integrity in the ex parte patenting process, where no other party participates to induce full disclosure. The doctrine of inequitable conduct, historically, has been the key gatekeeper policing the patent system’s integrity.5 Now, with its virtual elimination, is there still sufficient incentive to comply with the “duty of candor”6 principles that have traditionally served the patenting process? It is without question, the use of inequitable conduct to police the duty of candor had been abused over the years. But, perhaps this cure is worse than the disease.","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124986325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the U.S. Supreme Court’s landmark decision, Markman v. Westview Instruments, Inc., courts have employed a textualist approach when construing patent claims. Claim construction has been held to be purely a matter of law, which leaves no room for deference when the construction is reconsidered on appellate review. But as argued in this article, patent claims are a unique type of legal text, and cannot simply be analogized to statutes or contracts, which courts and scholars occasionally attempt to do. Taking lessons from the general legal theory of interpretation, the textualist approach should only be a starting point for the interpretation of patents, rather than an all-encompassing approach. By adapting and using a range of theories of legal interpretation outside the patent sphere, we can find an approach to patent claim construction that more consistently results in satisfactory constructions. This may, for example, include consideration of fact-intensive inquiries such as an inventor’s intention and public policy. As a corollary, an expansive jurisprudential approach to patent claim construction calls into question current patent doctrine concerning the standard of review — should claim construction really be subject to de novo review?
{"title":"Patent Claim Construction As a Form of Legal Interpretation, 12 J. Marshall Rev. Intell. Prop. L. 40 (2012)","authors":"Christian E. Mammen","doi":"10.2139/SSRN.2012571","DOIUrl":"https://doi.org/10.2139/SSRN.2012571","url":null,"abstract":"Since the U.S. Supreme Court’s landmark decision, Markman v. Westview Instruments, Inc., courts have employed a textualist approach when construing patent claims. Claim construction has been held to be purely a matter of law, which leaves no room for deference when the construction is reconsidered on appellate review. But as argued in this article, patent claims are a unique type of legal text, and cannot simply be analogized to statutes or contracts, which courts and scholars occasionally attempt to do. Taking lessons from the general legal theory of interpretation, the textualist approach should only be a starting point for the interpretation of patents, rather than an all-encompassing approach. By adapting and using a range of theories of legal interpretation outside the patent sphere, we can find an approach to patent claim construction that more consistently results in satisfactory constructions. This may, for example, include consideration of fact-intensive inquiries such as an inventor’s intention and public policy. As a corollary, an expansive jurisprudential approach to patent claim construction calls into question current patent doctrine concerning the standard of review — should claim construction really be subject to de novo review?","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114471951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article attempts to track China’s intellectual property rights (“IPR”) enforcement problem through exploring its fundamental institutional defects that fuels impunity of, or at least fails instilling an ethos hostile to, IPR infringements. By examining China’s philosophical and institutional predisposition, this article argues that counterfeiting and piracy are not problems caused by the Confucian ethics, as the conventional wisdom underscores, but rather, among other things, a unique political phenomenon resulting from the systemic dystrophy fundamental to the institutional development. This article concludes that, to a large extent, the IPR enforcement problems in China are attributed to its unique bureaucracy characterized by the collectivist ideology, decentralized responsibilities, the lack of transparencies and the inadequate judiciary.
{"title":"The Paradox of Confucian Determinism: Tracking the Root Causes of Intellectual Property Rights Problem in China, 7 J. Marshall Rev. Intell. Prop. L. 454 (2008)","authors":"Wei Shi","doi":"10.2139/SSRN.2024628","DOIUrl":"https://doi.org/10.2139/SSRN.2024628","url":null,"abstract":"This article attempts to track China’s intellectual property rights (“IPR”) enforcement problem through exploring its fundamental institutional defects that fuels impunity of, or at least fails instilling an ethos hostile to, IPR infringements. By examining China’s philosophical and institutional predisposition, this article argues that counterfeiting and piracy are not problems caused by the Confucian ethics, as the conventional wisdom underscores, but rather, among other things, a unique political phenomenon resulting from the systemic dystrophy fundamental to the institutional development. This article concludes that, to a large extent, the IPR enforcement problems in China are attributed to its unique bureaucracy characterized by the collectivist ideology, decentralized responsibilities, the lack of transparencies and the inadequate judiciary.","PeriodicalId":154356,"journal":{"name":"John Marshall Review of Intellectual Property Law","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114067240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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