1,362 research outputs found

    Intellectual Property Rights (IPR) Disputes in Cyberspace: U.S. Hegemony and Chinese Resistance

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    This paper aims at explicating the hegemonic pressure from the U.S. side and the constant resistance from the Chinese side during the U.S.-China IPR disputes in the cyberspace. The theory of hegemony and extended literature review reveal that during the U.S.-China IPR disputes in cyberspace, the dominant U.S. power has shaped the IPR world order so effectively for its own interests that China as a disadvantaged country has been included, albeit with reservations, in the broad consent of the U.S. hegemonic sphere of influence. This study has also demonstrated significant theoretical and practical implications

    Alice in Wonderland Meets the U.S. Patent System

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    Among the joys of being a professor, as distinguished from practicing law, are the leisure and incentive to think and write about the big picture. Another joy is being able to say what you really think. We professors don\u27t have to focus on attracting clients or maintaining an impression of studied understatement and moderation for judges and juries. In this talk, I\u27m going to exercise both of these prerogatives. I\u27ve been thinking about the big picture in patents for over a quarter century, and I\u27m more worried than I\u27ve ever been. Let me begin by making my usual (and truthful) disclaimer. I\u27m not one of those academics who delights in being a gadfly and finding cause for alarm in every new law and every twist and turn of legal history. I\u27m the author of three treatises--on intellectual property generally, licensing, and cyberlaw. I\u27ve spent much of the last thirteen years of my life writing and revising them. Like treatises generally, each largely describes and explains our current intellectual property system, and each finds much to like in what both recent and earlier history have wrought. More fundamentally, I strongly subscribe to the view that the robust intellectual property system of Anglo-American society is in part responsible for our society\u27s extraordinary economic success over the last four centuries. But the warning signs of excess are everywhere. One need look no farther than the Federal Trade Commission\u27s White Paper that is the subject of today\u27s discussion. Think about it. Congress has clipped the FTC\u27s policy wings so often that it\u27s a wonder the agency can fly at all. Moreover, for the first time in decades, the executive and legislative branches of our government are controlled by Republicans, who have not generally been zealous advocates for aggressive antitrust enforcement and “pruning” the IP laws. Yet even in this very conservative political environment, the FTC--a much-chastened agency--has proposed ten recommendations (fourteen, if you count the subheads) for reining in the patent system. If that isn\u27t a clear sign that something desperately needs attention, I don\u27t know what is. Therefore I\u27m going to take the premise of my talk--that something is wrong-- for granted. In the short time that I have, I\u27d like to explore three further questions. First, what is wrong? Second, how can we fix it? And third, how important is it that we do so

    A Comparative Perspective on the Patent Eligibility of Software Inventions

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    Computer software is considered similar to an algorithm, a mental activity, or an abstract idea, so whether or not it meets patent eligibility is full of controversy. Although computer software products are sold all over the world, each jurisdiction deals with them differently based on individual regulations. If there were an objective and proper way to deal with this subject matter, it would reduce the number of debates and narrow the gap of patent protection among different jurisdictions. The meaning of invention in patent law in each jurisdiction is the most important factor affecting the determination of patent eligibility, which contains some common characteristics of statutory subject matters. Additionally, the explanation of the invention in the examination guidelines for computer software inventions promulgated by each patent office also reflects different official attitudes toward this issue. Some external factors will also affect the determination of this issue, such as the development of local industry, the demand for global trade, obligations as a member of international organizations, and so on. The determination of patent eligibility of software inventions involves subjective and objective considerations; however, some merits of tests or requirements for software patents can be employed as assistant factors in the issue. Since these types of constraints may limit the scope of rights of each invention, patent offices do not have to exclude them from statutory subject matters due to the reason that they may preempt a very wide range of rights

    State-Centric or State-in-Society: National Identity and Collective Memory in the Linkage Politics of Chinese Foreign Relations

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    This dissertation, with a standpoint of disentangling China\u27s diplomacy inside-out, explores the Chinese state-society relationship in domestic-foreign-policy interaction. With its analytic focus resting on the collective memory of national humiliation in modern Chinese history and the derived national identity, this project delves into the linkage between the ideational impetus of the diplomatic decision-making of the Chinese Communist Party (CCP) and the way that the authoritarian regime claims its internal and external legitimacy. In the state legitimation, collective memory and national identity are instrumentalized to enact the moral justification of the CCP\u27s political authority and to justify China\u27s persistent quest to regain a rightful place in the international arena. In the belief system of Chinese foreign policy ideas, these historical institutions shape the conception of the state interests and the goals of national foreign policy. The normative and purposive meanings and the affective dimension of these ideational factors have given ground to the ethical agenda of China\u27s diplomacy. The CCP\u27s policy calculation in its external legitimation can go against the moral standards by which domestic audience assesses its diplomatic performance. In the interrogation of the discrepancy between the state\u27s foreign policy behavior and the CCP\u27s role playing claimed for its memory-based legitimacy, the scripts of Chinese diplomatic drama derived from historical institutions have empowered the agency of the Chinese populace to contend with the authoritarian state

    How should China Deal With the Patent-related Issues in Technical Standardization

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    Master'sMASTER OF LAW

    Post-WTO China Tax Law System Reform and the Rule of Law: Progress and Prospects

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    A close examination of China\u27s accession commitments reveals that effective economic reform and trade liberalization call for substantiations from a matching legal infrastructure reform. For example, taxpayers\u27 rights protection should be viewed in terms of broader political and civil rights reform. Indeed, a number of the values featured in the WTO principles and the rule of law framework encourage China\u27s further integration into both the global trade network and the international human rights regime. This is particularly evident in the Chinese tax law context. WTO principles and the rule of law requirements must be introduced and evaluated together in tax law reform proposals. WTO principles of transparency, uniform and impartial administration, judicial review match the instrumentalist\u27s rule of law elements of consistency, generality, predictability, enforceability, stability and congruence, and the substantive rule of law framework\u27s requirements of democracy, limited government, accountable administrative decision-making, and judicial independence. China\u27s accession to the WTO requires reform not only of China\u27s substantive laws, but also of its institutional arrangements, to which the Chinese government has given inadequate consideration. Without real institutional reforms creating an independent and functional administrative framework or judiciary, any substantive economic reforms are likely to fall in nascent or vague - the tremendous economic success will be held back when ill-designed incentives are spoiled or exploited. The transparency requirement scattered in various provisions of the WTO Accession Agreement is an elevated burden for China. The uniform and impartial administration principle demands the removal of subtle trading barriers such as local protectionist practices. More importantly, independent judicial review of administrative actions challenges the status quo of slow judicial reform in China - requiring that China\u27s courts meet WTO standards of independence, impartiality and non-arbitrary enforcement of judgments. China\u27s tax law system is administrative in nature but this characterization is complicated by legislative and judicial functions in the tax law. In this sense, the tax law reform benefits from as well as is circumvented by the post-WTO legal reform. The accession to WTO bounds China calling for transparency, consistency, simplicity and certainty in terms of tax legislations at both national and local levels. The hierarchical tax administration structure should not impede enforcement of tax laws. Uniform and impartial administration of tax regulations at various local levels should be improved to a level acceptable to guarantee wellgrounded tax administrative decisions and facilitate tax judicature independence. Given the growing awareness of taxpayers\u27 rights, tax authorities should not dwell at the stereotype monitor position proclaiming obligation to pay tax, rather, a workable system of protections should be established and honored. Moreover, the tax treatment of the nonprofits sector as the third sector of the society should be formulated and enforced. China\u27s tax reform cannot be expected to fit any pre-designed, transplanted model. The project here is to build a versatile tax system, which takes opportunities to streamline, track, and propel economic development

    Post-WTO China Tax Law System Reform and the Rule of Law: Progress and Prospects

    Get PDF
    A close examination of China\u27s accession commitments reveals that effective economic reform and trade liberalization call for substantiations from a matching legal infrastructure reform. For example, taxpayers\u27 rights protection should be viewed in terms of broader political and civil rights reform. Indeed, a number of the values featured in the WTO principles and the rule of law framework encourage China\u27s further integration into both the global trade network and the international human rights regime. This is particularly evident in the Chinese tax law context. WTO principles and the rule of law requirements must be introduced and evaluated together in tax law reform proposals. WTO principles of transparency, uniform and impartial administration, judicial review match the instrumentalist\u27s rule of law elements of consistency, generality, predictability, enforceability, stability and congruence, and the substantive rule of law framework\u27s requirements of democracy, limited government, accountable administrative decision-making, and judicial independence. China\u27s accession to the WTO requires reform not only of China\u27s substantive laws, but also of its institutional arrangements, to which the Chinese government has given inadequate consideration. Without real institutional reforms creating an independent and functional administrative framework or judiciary, any substantive economic reforms are likely to fall in nascent or vague - the tremendous economic success will be held back when ill-designed incentives are spoiled or exploited. The transparency requirement scattered in various provisions of the WTO Accession Agreement is an elevated burden for China. The uniform and impartial administration principle demands the removal of subtle trading barriers such as local protectionist practices. More importantly, independent judicial review of administrative actions challenges the status quo of slow judicial reform in China - requiring that China\u27s courts meet WTO standards of independence, impartiality and non-arbitrary enforcement of judgments. China\u27s tax law system is administrative in nature but this characterization is complicated by legislative and judicial functions in the tax law. In this sense, the tax law reform benefits from as well as is circumvented by the post-WTO legal reform. The accession to WTO bounds China calling for transparency, consistency, simplicity and certainty in terms of tax legislations at both national and local levels. The hierarchical tax administration structure should not impede enforcement of tax laws. Uniform and impartial administration of tax regulations at various local levels should be improved to a level acceptable to guarantee wellgrounded tax administrative decisions and facilitate tax judicature independence. Given the growing awareness of taxpayers\u27 rights, tax authorities should not dwell at the stereotype monitor position proclaiming obligation to pay tax, rather, a workable system of protections should be established and honored. Moreover, the tax treatment of the nonprofits sector as the third sector of the society should be formulated and enforced. China\u27s tax reform cannot be expected to fit any pre-designed, transplanted model. The project here is to build a versatile tax system, which takes opportunities to streamline, track, and propel economic development

    “Less Is More”: New Property Paradigm in the Information Age?

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    Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this evidence in time to limit expansive copyright. United States law, however, already protects information products under copyright. Hence, this counterfactual evidence that judges request cannot be generated in the United States. In response to the demand for data, American legal scholars have attempted to mine evidence from open software and other non-commercial endeavors on the Internet. However, these endeavors have been dismissed as exceptions or “cults,” unrelated to mainstream industry needs. This Article, for the first time, provides evidence of growth in the commercial software industry without intellectual property protection. Between 1993 and 2010, the software industry in India emerged as the fastest growing in the world, accounting for $76 billion in revenues by 2010. In the same time period, the software industry in India remained unaffected by changes in intellectual property protection for software. By demonstrating industry growth without strong intellectual property protections, the Indian data fills the critical gap in American literature. Moreover, the comparative data from India enables scholars to separate causality from outcomes in specific empirical and analytical studies emerging out of the United States. In the case study of California’s Silicon Valley, for instance, there is a risk that causality may be extrapolated to alternative California statutes, giving rise to errors of second order. The comparative analysis checks this potential inaccuracy. The industry in India also provides illuminating data from contracting practices—decisive evidence of the legal infrastructure firms need and will create by contract, if not found in a priori law. This study equips policy-makers to go beyond the “historic accident” explanation to understand why the software industry flourishes where it does

    Alice in Wonderland Meets the U.S. Patent System

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    The attached article outlines in some detail why I think it matters in two particular fields—software and business methods—in which the PTO has issued, and the Federal Circuit has upheld, what I think are too many patents on non-inventions. The following remarks take a broader and longer-range view of patents generally. The first reason why having a properly balanced patent system matters relates to the historical period in which we find ourselves. The world is now in the process of transferring the self-evident benefits of robust innovation, free markets, and free trade from Anglo-American and other advanced societies to the rest of the planet. This transfer, often pejoratively termed “globalization” by “multinational corporations,” involves far more than mere globalized marketing of American products and far more than just the largest industrial combines. It is an extremely complex, far-reaching process. In the long run, it is likely not only to improve the standard of living in, but also to democratize, much of the planet. When the history of this period has been written, this transition may be as important as—or even more important than—the Industrial Revolution. Innovation and the patent laws that encourage it are, of course, a vital part of this process. The second reason why patents and laws governing innovation are so important is seldom stated but perhaps most fundamental. The patent system and those laws affect a value we Americans perhaps hold most dear: liberty. Liberty is not only a matter of human rights or freedom from tyranny. There is such a thing as economic liberty. Indeed, as raw tyranny of the type exemplified by Saddam Hussein recedes from the world stage, economic liberty no doubt will become more and more important

    The Politics of Medicine: Power, Actors, and Ideas in the Making of Health

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    The practice of medicine has become the prescribing of medicine. Reflecting a construct of health defined by Rationalism, individualism, and biomedical science, medicines (pharmaceuticals) are politically constructed to be the first – and sometimes only prescribed – line of defense against illness and disease. Pharmaceuticals also represent a highly desirable, ‘recession-proof’ component of many Nation-states’ (states’) export strategies, helping advanced economies, in particular, to maintain favorable trade balances and economic growth amidst the headwinds of deindustrialization. Higher use and the overreliance on pharmaceuticals promote an outsized role for certain actors and ideas in the making of global health, referring to the systems of medical practice, the norms defining health subconsciously and consciously, the politico-economic relations and decisions that prioritize certain qualities and determinants of health, and interventions relating to health. Concentrations of power deepened under globalization, reinforcing and internationalizing specific, hegemonic ideas about health that reflect the ideas and interests of dominant actors. These dynamics further privilege certain actors and ideas in political and economic processes, which have the practical effect of predetermining outcomes. In this way, power sustains the global normative and politico-economic conditions that comprise modern health—power makes health. This dissertation employs pharmaceuticals as a proxy to examine power asymmetries and market-oriented norms relating to health. The research examines the formative ideas and structuring role of power on the political salience, interests, values, and choices of the leading actors in global health. Rather than an exclusive focus on health’s visible outcomes, the research distinguishes the influence of power asymmetries expressed through norm formation and spread. It finds that health is a core issue of the 21st century global political economy and equitable scholarly focus and practical solutioning must be applied to the ideas, contexts, content, and processes that make health
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