Abercrombie 2.0-Can We Get There From Here? Thoughts on "Suggestive Fair Use"

In response to Jake Linford, The False Dichotomy Between Suggestive and Descriptive Trademarks, 76 Ohio St. L.J. 1367 (2015)

Charting Supreme Court Patent Law, Near and Far

The Supreme Court has been markedly more active in patent law in recent years, as many have noted. How much has patent law changed as a result? The amount of change one sees is, in important respects, a function of the lens through which one looks. In this network analysis of the Supreme Court’s citations to its own case law in all its intellectual property cases from 1947 to 2017, inclusive, I am reminded of Alphonse Karr’s famous quip: “Plus ça change, plus c’est law mȇme chose” — the more it changes, the more it’s the same thing. I report these empirical results as part of my commentary on Seth Waxman’s newly published analysis of the Supreme Court’s recent, more intense engagement with patent law

Patent Ships Sail an Antitrust Sea

The deeper truths evoked by patent ships sailing an antitrust sea are three. First, free competition is the pervasive, baseline reality, the background norm; patent protection is the temporary, partial exception. Second, we grasp both patent and antitrust policy with a common science: economics. Third, although neither patent nor antitrust law doctrines are good tools for fixing fundamental problems in the other body of law, both bodies of law help us better understand the shortcomings of the other. I explore these ideas in turn, below

Hoisting Originality

Copyright\u27s originality standard is ripe for reappraisal. Many have described how copyright exclusion claims now intrude into the everyday lives of ordinary folk - making an infringement nation, coated in billowing white goo. ((Tehranian (2007); Litman (2008)). And many have proposed ways to cope with copyright\u27s expansion, from strengthening the fair use privilege to trimming the derivative work right to modifying the basic substantial similarity infringement standard. A few have tackled the matter at the front end - putting, as it were, less goo in the billowing machine. ((E.g., Hughes, Size Matters (2005); Sprigman, Reform(Aliz)ing (2004)). Virtually no one, however, has gone back to the source - copyright\u27s originality standard. Feist, the phone book white pages case, tells us that, at least as a constitutional matter, the requisite level of creativity is extremely low. 499 U.S. 340, 345 (1991). But the Copyright Act\u27s statutory originality requirement can, and should, be more demanding. I pattern this exploration on patent law\u27s rejuvenated nonobviousness requirement, which the Supreme Court\u27s KSR decision (2007) grounds on inventing the unconventional and unexpected. We should put copyright\u27s creativity requirement on the same footing, protecting expression in proportion to its unconventionality. Indeed, the conditions that justify a nonobviousness requirement for useful inventions - distilled to the wisdom that [w]ith greater rights come more stringent requirements for obtaining the rights ((Duffy, Inventing Invention at 10 (2007)) - are strikingly similar to those that bear on creative expression. I also identify the critical wrong turn in Bleistein (1902), where Justice Holmes concluded that the alternative to a low creativity threshold was a stifling aesthetic orthodoxy policed by the judiciary. He was right to turn away from such orthodoxy, of course, but missed a third, and better way - rewarding, and thus encouraging, the heterodox itself. The progress at which we should aim, for copyright as much as for patent, is the new vista to which we\u27re led by those who break through conventional boundaries

Two Centuries of Trademark and Copyright Law: A Citation-Network-Analysis Approach

The Supreme Court has decided many more patent cases than trademark or copyright cases. This is so not just in the past decade—the focus of the tenth annual Supreme Court IP Review at the Chicago-Kent College of Law, in September 2019—but in the past 20 decades. In gathering the entire body of the Court’s IP caselaw for study with cita-tion-network-analysis tools, I found that patent cases greatly outnum-ber trademark and copyright cases. Moreover, patent cases, especially patent and antitrust cases, dominate the metrics for the most central cases in the citation network

Brandeis\u27s IP Federalism: Thoughts on \u3ci\u3eErie\u3c/i\u3e at Eighty

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context? This piece, prepared in connection with the “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.

The Proven Key: Roles and Rules for Dictionaries in the Patent Office and the Courts

The U.S. Court of Appeals for the Federal Circuit, in its continuing effort to develop a patent claim construction jurisprudence that yields predictable results, has turned to dictionaries, encyclopedias, and similar sources with increasing frequency. This paper explores, from both an empirical and a normative perspective, the Federal Circuit\u27s effort to shift claim construction to a dictionary-based approach. In the empirical part, we present data showing that the Federal Circuit has, since its own in banc Markman decision in April 1995, used reference works such as dictionaries to construe claim terms with steadily increasing frequency. In addition, and contrary to what one might predict from some of the court\u27s earlier statements justifying reliance on dictionaries in claim construction, the Federal Circuit has relied on general purpose English language dictionaries more than twice as often as it has relied on more technical or specialized reference works. Indeed, the claim construction reference work the Federal Circuit has cited most often is Webster\u27s Third New International Dictionary, which by itself accounts for 25% of all such citations and 36% of all citations to general purpose English language dictionaries and similar sources. After demonstrating that the caprice with which judges currently may choose dictionaries effectively eliminates whatever neutrality and predictability gains the turn to dictionaries can offer, we show that the best route to a dictionary-based approach for settling a claim term\u27s ordinary meaning is an explicit change to the Patent Office rules governing patent examination. Specifically, we propose that the Patent Office require that every patent applicant put her dictionary selections (general purpose and technical) on the record during examination, and that any resulting issued patent state the applicant\u27s dictionary selections on its face. Only with such changes to Patent Office rules can the patent system hope to realize the neutrality and predictability goals that rightly animate the Federal Circuit\u27s turn to dictionaries

13kW Advanced Electric Propulsion Flight System Development and Qualification

The next phase of robotic and human deep space exploration missions requires high performance, high power solar electric propulsion systems for large-scale science missions and cargo transportation. Aerojet Rocketdyne's Advanced Electric Propulsion System (AEPS) program is completing development and qualification of a 13kW flight EP system to support NASA exploration. The first use of the AEPS is planned for the NASA Power & Propulsion Element, which is the first element of NASA's cis-lunar Gateway. The flight AEPS system includes a magnetically shielded long-life Hall thruster, power processing unit (PPU), and xenon flow controller (XFC). The Hall thruster, originally developed and demonstrated by NASA's Glenn Research Center and the Jet Propulsion Laboratory, operates at input powers up to 13.3kW while providing a specific impulse over 2600s at an input voltage of 600V. The power processor is designed to accommodate an input voltage range of 95 to 140V, consistent with operation beyond the orbit of Mars. The integrated system is continuously throttleable between 3 and 13.3kW. The program has completed testing of the Technology Development Units and is progressing into the Engineering Development Unit test phase and the final design phase to Critical Design Review (CDR). This paper will present the high power AEPS system capabilities, overall program and design status and the latest test results for the 13kW flight system development as well as the plans for the development and qualification effort of the EP string

A Generic, Adaptive Systems Engineering Information Model I

This paper proposes a new network centric architecture that can be used by first responders to effectively respond to crisis situations. The powerful network-centric concept originally developed for and mainly used in the military environment, can be effectively used for civilian security and emergency response missions. This paper also proposes the use of a swarm of intelligent robots as a part of the network-centric architecture to aid the first responders. The swarm of robots works in tandem with the first responders and provides them with the necessary information on a real time basis. The proposed network centric architecture with a swarming robot entity is explained in detail using C4ISR framework. The proposed architecture if implemented successfully will result in solving crisis situations, may it be natural calamity or terrorist attacks, more efficiently and effectively