Truth In Intellectual Property Revisited: Embracing eBay at the Edge

In addition to whatever else it might do to serve the public interest, intellectual property diminishes the commons. To that extent, any particular intellectual property claim intersects the public interest and affects more than just the immediate parties. Not only does intellectual property diminish the commons, but also each of its disciplines contains an almost casually incoherent metaphysic. There is incoherence, if not at the core, at least at the critical edges of intellectual property law that is systemic and fundamental. Notwithstanding over 200 years of practice in the United States, the goal of establishing a sufficiently principled, practical and predictable set of intellectual property rules is still not satisfied. In this context the otherwise peculiar result of eBay is not only tolerable, but welcome. At the critical edge of intellectual property law where the rules seem especially odd and the distinctions particularly refined and subtle a limited remedy can limit the damage that an unmanageable intellectual property law regime can inflict on the commons against the public interest. A qualified embrace of eBay supports the public interest and provides a way out of the hall of mirrors that is modem intellectual property law, short of breaking all the mirrors and starting over

Toward Non-Neutral First Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses

A series of recent cases revisits secondary liability in intellectual property law, solving some particular problems but without providing completely specified rules that are predictable and principled. Prior law already includes several varieties of secondary liability with a rationale for each. Together, these old and new sources point the way towards a synthesis, which may allow for a designed solution that is more fully specified, at least in respect of new technological uses. When all is said, secondary liability in intellectual property law still turns on two essential questions: (1) is there someone who is liable for direct infringement, and if so (2) is it just to hold someone else accountable? Both of these inquiries contain embedded variables, which are to a surprising degree free and indeterminate with respect to users of new technologies in places created by code. These places created by code include the metaverse, virtual worlds, cypherspace, and cyberspace proper (the code world ). The code world and the new machines that enable it constitute new technological uses (NTUs) that have great economic and practical consequence. I propose legal rules purposely chosen to encourage a designed architecture for NTUs that will prefer hitchhikers, guides and ordinary users to predators, pirates and spoilers of the new machines and the code world. I propose both a short-term solution centered on interim safe harbors and a longer-term project to disintegrate liability-style rules from property-style rules. The solutions depend upon intentional design of liability rules (is there someone liable for direct infringement?), and of limited remedies intentionally fitted to the new technological uses for which they are designed (is it just to hold someone else accountable?)

Designing Food, Owning the Cornucopia: What the Patented Peanut Butter & Jelly Sandwich Might Teach About GMOs, Modified Foods, the Replicator, and Non-Scarcity Economics

Imagine for purposes of discussion that the technology for designing and building an actual cornucopia—something that embodies code, genetically modified organisms, or other techniques for producing, modifying, creating, or duplicating food (call it neo-tech food design)— exists, works, and is safe. To frame the problems of neo-tech food design, I start with what ought to be an easy case of low-tech food design, the peanut butter and jelly sandwich. Since it is a prime example of an incremental improvement invention, and hence like very many other inventions that are routinely patented, it must be asked: was there a problem? And if so, what exactly was the problem with the issuance, or cancelation of a patent on a sandwich comprising a doubly sealed, doubly encapsulated jelly filling with spaced apart seals, one of which capsules is peanut butter? Based on lessons learned from the once-patented sandwich, I present two proposals, in the alternative. First, and as what might seem an unlikely solution, I endorse the creation of a Public Domain Protection Agency (PDPA) with resources to help resolve the problems that will predictably arise out of a cornucopia. The PDPA might also serve as a counterweight to the tendency, exemplified by the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to lock-in some of the current developed nations’ standards for patentability, world-wide. Second, I present an alternate proposal that is more attainable: (1) virtual field of use limitations, and (2) virtual ratemaking proceedings. This last proposal can be practically implemented by a revitalization of the beneficial utility (or ordre public) doctrine or by a purposive reconsideration, and discretionary implementation of existing remedies under current patent law. Preparing in advance for the problems of neo-tech food design has the advantage of preserving the system of patent law, rebalancing it in the interest of justice to ensure an economic return to inventors in global markets while avoiding the charge of profiteering on hunger in certain less fortunate markets. This is a particular instance of a larger problem. The problem is that some of the new technologies extend the unexplored limits of non-scarcity economics to a degree not previously seen in patent law. This, in turn, challenges the “justice” of the conventional patent system

Minority Report: Real Patent Reform, Maybe Later - the America Invents Act and the Quasi-Recodification Solution

This Article has three parts. In Part One, I describe what Congress claims to have done, then what the Act actually has done, and therefore what is the most that can be hoped to come from it. In considering what Congress has done, I briefly outline the theoretical basis of the new hybrid system, neither first-to-invent nor first-to-file, but rather a first to declare system with a one-year grace period that is both a shield and a sword to the declarant. More importantly, Congress has indicated it believes the new system is compatible with the Constitutional grant, and I suggest that Congress\u27 new perspective may lead to a new understanding of what the Constitution minimally requires, thereby opening the way for a more flexible, efficient, and streamlined patent regime despite the ALA. In Part Two, I describe the nature of the underlying problems in patent law. What, exactly, makes a bad patent worse than any other patent? If there were a serious problem with bad patents prior to the AIA, there still is. The reason for asking the question is stunningly simple: if so many routinely issued patents are bad, then it must be said that bad patents are not an abuse of the current system, they are the system. In this section, I describe what the AIA has failed to do, propose a working definition of bad patents, and provide some hypotheticals aimed at the non-specialist. I claim the problem of bad patents is endemic to the existing system, is not nearly cured by or even defined in the AIA, and yet is possible of cure according to a new way of framing that might be embedded in the AIA. How, then, ever to attain real and fundamental patent reform post-AIA

Schizophrenia in late life: emerging issues

Schizophrenia in late life is emerging as a major public health concern worldwide. We discuss several areas of research and clinical care that are particularly pertinent to older persons with schizophrenia, including the public health challenge and the cost of care. We then discuss clinical issues relevant to late-life schizophrenia (course of illness and cognition), medical care and comorbidity in older psychiatric patients (general and illness-related), and treatment concerns related to the use of atypical antipsychotics in older persons with psychosis (efficacy and side effects). Clinical care for this ever-increasing segment of our population requires special consideration of the unique characteristics of older persons with schizophrenia

Intellectual Property and Public Health – A White Paper

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other non-IP values that are important in health and how does or can IP law help resolve these conflicts? This report addresses each of these questions in turn

MMP2 genetic variation is associated with measures of fibrous cap thickness: The Atherosclerosis Risk in Communities Carotid MRI Study

Objective- Genetic variation in matrix metalloproteinase (MMP) promoter regions alters the transcriptional activity of MMPs and has been consistently associated with CHD, presumably through plaque degradation and remodeling. We examined the association of MMP promoter variation with multiple plaque characteristics measured by gadolinium-enhanced MRI among 1,700 participants in the Atherosclerosis Risk in Communities (ARIC) Carotid MRI Study. Methods—For the analyses presented here, 1,700 participants of the biracial ARIC Carotid MRI Study (~1,000 participants with thick carotid artery walls and ~700 randomly sampled participants) were evaluated for associations of MMP genetic variation with multiple plaque characteristics, including carotid artery wall thickness, lipid core and fibrous cap measures. MRI studies were performed on a 1.5T scanner equipped with a bilateral 4-element phased array carotid coil. Results—Fifty-one percent of the participants were female, 77% white, 23% African American, and the mean age was 70 years. MMP2 C-1306T variant genotypes (CT+TT) were significantly associated with higher cap thickness measures, but not with wall thickness or lipid core measures. Individuals with the CC genotype had approximately 0.1 mm thinner cap thickness compared to those carrying a T allele (p=0.02). Conclusion—Genetic variation within the MMP2 promoter region was associated with cap thickness and therefore may influence the role of MMP2 in plaque vulnerability

The ARIC (Atherosclerosis Risk in Communities) Study: JACC Focus Seminar 3/8

ARIC (Atherosclerosis Risk In Communities) initiated community-based surveillance in 1987 for myocardial infarction and coronary heart disease (CHD) incidence and mortality and created a prospective cohort of 15,792 Black and White adults ages 45 to 64 years. The primary aims were to improve understanding of the decline in CHD mortality and identify determinants of subclinical atherosclerosis and CHD in Black and White middle-age adults. ARIC has examined areas including health disparities, genomics, heart failure, and prevention, producing more than 2,300 publications. Results have had strong clinical impact and demonstrate the importance of population-based research in the spectrum of biomedical research to improve health

Sequence variation in telomerase reverse transcriptase (TERT) as a determinant of risk of cardiovascular disease: the Atherosclerosis Risk in Communities (ARIC) study

Abstract Background Telomerase reverse transcriptase (TERT) maintains telomere ends during DNA replication by catalyzing the addition of short telomere repeats. The expression of telomerase is normally repressed in somatic cells leading to a gradual shortening of telomeres and cellular senescence with aging. Interindividual variation in leukocyte telomere length has been previously associated with susceptibility to cardiovascular disease. The aim of the present study was to determine whether six variants in the TERT gene are associated with risk of incident coronary heart disease, incident ischemic stroke, and mortality in participants in the biracial population-based Atherosclerosis Risk in Communities (ARIC) study, including rs2736100 that was found to influence mean telomere length in a genome-wide analysis. Methods ARIC is a prospective study of the etiology and natural history of atherosclerosis in 15,792 individuals aged 45 to 64 years at baseline in 1987–1989. Haplotype tagging SNPs in TERT were genotyped using a custom array containing nearly 49,000 SNPs in 2,100 genes associated with cardiovascular and metabolic phenotypes. Cox proportional hazards models were used to assess the association between the TERT polymorphisms and incident cardiovascular disease and mortality over a 20-year follow-up period in 8,907 whites and 3,022 African-Americans with no history of disease at the baseline examination, while individuals with prevalent cardiovascular disease were not excluded from the analyses of mortality. Results After adjustment for age and gender, and assuming an additive genetic model, rs2736122 and rs2853668 were nominally associated with incident coronary heart disease (hazards rate ratio = 1.20, p = 0.02, 95 % confidence interval = 1.03– 1.40) and stroke (hazards rate ratio = 1.17, p = 0.05, 95 % confidence interval = 1.00 - 1.38), respectively, in African-Americans. None of the variants was significantly associated with cardiovascular disease in white study participants or with mortality in either racial group. Conclusions Replication in additional population-based samples combined with genotyping of polymorphisms in other genes involved in maintenance of telomere length may help to determine whether genetic variants associated with telomere homeostasis influence the risk of cardiovascular disease in middle-aged adults