Fame: Ownership Implications of Intellectual Property and Agency Law

In the pre-internet era, it was difficult to reach a wide audience without the help of a professional organization, so as a practical matter control typically rested with distributors rather than with talent. Now that direct public distribution is easy and inexpensive, distributors’ practical control has greatly diminished, and it is therefore important to consider the legal principles that govern the control of the use of “fame.” This Article defines fame as a bundle of intellectual property rights and analyzes the ownership of those rights under intellectual property and agency theories

Defending Breakthrough Innovation: The History and Future of the State of Patent Law

Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has finally developed a theory as to why certain types of inventions, although embraced by the statutory definition, are nonetheless unpatentable. The theory, in effect, abandons the federal government’s role in protecting those inventions. This article explores the consequences of the resulting vacuum and challenges the conventional wisdom that patents are purely federal and purely statutory. Part II of this article traces the history of the statutory concept of patentable subject matter and the judicial efforts to narrow this definition. Part III of this article reviews the current Supreme Court theory. Part IV analyzes the consequences of that theory from a federalism perspective and argues that, by creating a federal vacuum, the Court has opened the door for state patent laws. Part V outlines how certain states can take advantage of this opening and deals with some anticipated objections to this proposal

Harmonization Through Condemnation: Is New London the Key to World Patent Harmony?

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that all the other countries are doing it and the hope that some concessions in other aspects of intellectual property or trade might be obtained in exchange. There are compelling reasons to resist the change, principally that (unless other fundamental aspects of U.S. patent law are changed as well) U.S. inventors will be disadvantaged. Even if the arguments favoring the change are found to outweigh the arguments favoring the status quo, the power to grant U.S. patents derives from Article I, Section 8, Clause 8 (the Intellectual Property Clause) of the Constitution, which authorizes granting exclusive rights to authors and inventors. Other countries are not so constrained. An historical analysis of the Intellectual Property Clause and review of the types of evidence used by the Supreme Court in constitutional analysis lead to the conclusion that the Intellectual Property Clause does not permit granting patents to the first applicant in preference to the first inventor. Alternate sources of Congressional power have been suggested (principally the Commerce Clause and the Treaty Power), but the Supreme Court has never found either sufficient to overcome a specific constitutional limitation of power. The only power which seems sufficient to accomplish the objective of harmonization within constitutional limits is eminent domain

Yours for Keeps: MGM v. Grokster

In MGM v. Grokster, now pending before the U.S. Supreme Court, all parties have made the assumption that most P2P file transfers infringe copyrights. Two theories contradict that assumption: a significant number of individuals who transfer files over P2P networks may have a license to do so, and the Copyright Act itself may exempt the transfer of certain categories of entertainment files over P2P networks from the definition of infringement

Harmonization Through Condemnation: Is New London the Key to World Patent Harmony?

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that all the other countries are doing it and the hope that some concessions in other aspects of intellectual property or trade might be obtained in exchange. There are compelling reasons to resist the change, principally that (unless other fundamental aspects of U.S. patent law are changed as well) U.S. inventors will be disadvantaged. Even if the arguments favoring the change are found to outweigh the arguments favoring the status quo, the power to grant U.S. patents derives from Article I, Section 8, Clause 8 (the Intellectual Property Clause) of the Constitution, which authorizes granting exclusive rights to authors and inventors. Other countries are not so constrained. An historical analysis of the Intellectual Property Clause and review of the types of evidence used by the Supreme Court in constitutional analysis lead to the conclusion that the Intellectual Property Clause does not permit granting patents to the first applicant in preference to the first inventor. Alternate sources of Congressional power have been suggested (principally the Commerce Clause and the Treaty Power), but the Supreme Court has never found either sufficient to overcome a specific constitutional limitation of power. The only power which seems sufficient to accomplish the objective of harmonization within constitutional limits is eminent domain

Yours for Keeps: MGM v. Grokster

In MGM v. Grokster, now pending before the U.S. Supreme Court, all parties have made the assumption that most P2P file transfers infringe copyrights. Two theories contradict that assumption: a significant number of individuals who transfer files over P2P networks may have a license to do so, and the Copyright Act itself may exempt the transfer of certain categories of entertainment files over P2P networks from the definition of infringement

Harmonization Through Condemnation: Is New London the Key to World Patent Harmony?

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that all the other countries are doing it and the hope that some concessions in other aspects of intellectual property or trade might be obtained in exchange. There are compelling reasons to resist the change, principally that (unless other fundamental aspects of U.S. patent law are changed as well) U.S. inventors will be disadvantaged. Even if the arguments favoring the change are found to outweigh the arguments favoring the status quo, the power to grant U.S. patents derives from Article I, Section 8, Clause 8 (the Intellectual Property Clause) of the Constitution, which authorizes granting exclusive rights to authors and inventors. Other countries are not so constrained. An historical analysis of the Intellectual Property Clause and review of the types of evidence used by the Supreme Court in constitutional analysis lead to the conclusion that the Intellectual Property Clause does not permit granting patents to the first applicant in preference to the first inventor. Alternate sources of Congressional power have been suggested (principally the Commerce Clause and the Treaty Power), but the Supreme Court has never found either sufficient to overcome a specific constitutional limitation of power. The only power which seems sufficient to accomplish the objective of harmonization within constitutional limits is eminent domain