Dynamic Patent Disclosure

Those who tout the role of disclosure as a benefit of the patent system emphasize-as the Supreme Court has-that the information in patents add[s] to the general store of knowledge [and is] of such importance to the public weal that the Federal Government is willing to pay the high price of ... exclusive use for its disclosure, which disclosure ... will stimulate ideas and the eventual development of further significant advances in the art. As I excavate in this Article, the current state of patent disclosure-which many think is poor and does not achieve its objective of stimulating innovation-is impoverished in part because it occurs so early in the process of innovation, at the time a patent is filed. The law mandates no further disclosures after this point. So much of the innovation process, from refinement to prototyping to market research to mass production, has yet to occur at the moment of patent filing. Yet the law does not require disclosure of so much of this valuable information related to a patented invention. That is, patent disclosure is early and static. In this Article, I propose requiring more dynamic patent disclosure of important information generated post-patent filing. In particular, I advocate that patentees should be required to divulge all commercialized products they or their licensees make, linking the products to the patents they reasonably think cover those products. This form of dynamic patent disclosure would better effectuate patent law\u27s goal of promoting innovation by revealing helpful technological information, communicating clearer notice of patent scope, and generating useful empirical information to study the effectiveness of the patent system in promoting innovation and commercialization. Part I introduces the role and state of disclosure in the patent system. Part II proposes that patent law implement at least some forms of dynamic patent disclosure, underscoring the benefits of doing so. Part III addresses and seeks to resolve some of the complications of implementing a form of dynamic patent disclosure, namely, costs, reliability, and spillover effects

The Role of Creativity in Trademark Law

The article discusses various aspects of U.S. trademark law, including the differences between it and the patent and copyright branches of intellectual property law, trademark\u27s promotion of creativity, and the expansion of coverage under trademark law. The author examines the role of creativity in trademark law by analyzing the 2010 legal dispute between Stefani Germanotta, also known as entertainer Lady Gaga, and her ex-boyfriend and music producer Rob Fusari

The Role of Creativity in Trademark Law

The article discusses various aspects of U.S. trademark law, including the differences between it and the patent and copyright branches of intellectual property law, trademark\u27s promotion of creativity, and the expansion of coverage under trademark law. The author examines the role of creativity in trademark law by analyzing the 2010 legal dispute between Stefani Germanotta, also known as entertainer Lady Gaga, and her ex-boyfriend and music producer Rob Fusari

Market Effects Bearing on Fair Use

Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court’s decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a more full-bodied investigation of the market effects—both harms and benefits—of defendants’ works on plaintiffs’ copyrighted works. Courts can eliminate conclusory reasoning by appreciating that both market harms and benefits can matter in assessing fair use. In so doing, courts avoid weighing only the mere possibility that a licensing market does or could exist for a copyrighted work as a reflection of market harm and ignoring the possibility that a use of a copyrighted work might confer benefits on the copyright holder. Second, Campbell implied two important ways to divide relevant from irrelevant market effects. One ought to exclude market effects from consideration if they are empirically unlikely or if there are effects unrelated to the protectable aspects of the copyrighted work, such as its ideas or the societal value attributed to the work. This analytical framework for market effects bearing on fair use advances copyright’s goal of promoting the creation of artistic and cultural works from which society can benefit

Against Secondary Meaning

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or presume it, including the ease of establishing secondary meaning and inaccurate categorizations for assessing protectability and scope; the competitive inequalities secondary meaning creates which hurt smaller and newer businesses; and neglect of competitive harms caused by protecting marks whose primary meaning is too conceptually related to the associated goods or services. Alongside these dangers, businesses intrinsically have the incentive to establish secondary meaning regardless of whether trademark law requires it, making its enshrinement less necessary than the law and scholars suppose. Trademark law therefore ought to dethrone secondary meaning from its central role in establishing protectability and scope. Instead, primary meaning ought to be used to gauge protectability by assessing how conceptually related a mark is to its associated goods or services. Secondary meaning should also serve a more carefully tailored role in assessing scope, with a sliding scale of secondary meaning. These adjustments would address the dangers caused by the current role of secondary meaning and would help restore trademark law’s promotion of fair competition and consumer protection

Fashion\u27s Function in Intellectual Property Law

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the Supreme Court’s recent copyright decision in Star Athletica, L.L.C. v. Varsity Brands, Inc

Fashion\u27s Function in Intellectual Property Law

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the Supreme Court’s recent copyright decision in Star Athletica, L.L.C. v. Varsity Brands, Inc

The Audience in Intellectual Property Infringement

Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. Consumers, by contrast, are likely to pay more attention to market substitution and less attention to how things work under the hood. Understanding the different audiences in IP infringement is critical to understanding how the IP regimes variously define infringement. The focus on audience has normative as well as descriptive implications. Neither patent law, with its focus on experts and technical similarity, nor trademark law, with its market-based consumer focus, has it entirely correct. Rather, we suggest that as a general matter, infringement of an IP right should require both technical similarity and market substitution. An ideal IP regime should care about a defendant’s conduct only if that conduct actually causes injury to the plaintiff’s market and its work is sufficiently like the plaintiff’s that it is reasonable to give the plaintiff control over that work. Assessing infringement through the expert’s eyes ensures that the law prevents closely related works in the field while permitting sufficiently different contributions. The consumer vantage point ensures that we protect IP owners only when they have been harmed in the marketplace. IP owners who want to show infringement should have to demonstrate both that the defendant’s work is technically similar to their own from the expert’s vantage point and that the defendant’s use causes the plaintiff harm in the marketplace. Copyright law, which looks to both experts and consumers at various points in the infringement analysis, is on the right track