An Uncomfortable Fit?: Intellectual Property Policy and the Administrative State

The Southeastern Association of Law Schools (SEALS) panel responds to the considerable scholarship on the increasing integration of administrative law into intellectual property policy. The discussion was conducted August 4, 2009, as part of SEALS\u27 day-long Intellectual Property Workshop in West Palm Beach, Florida. Kali Murray moderated the panel, which included Sapna Kumar, Jason Mazzone, Hannibal Travis, and Jasmine Abdel-khalik

Internet Freedom with Teeth

You make the very salient statement that we shouldn\u27t lose sight of the fact that this is a case about teeth. Well, Markman was a case about dry cleaning. But nobody thinks of Markman as standing for anything about dry cleaning. So went what was Chief Judge Prost\u27s perhaps most striking question to the attorney for the International Trade Commission at oral argument in ClearCorrect Operating, LLC v. International Trade Commission, which is the focus of Professor Sapna Kumar\u27s recent article Regulating Digital Trade. Yet this is what remains so fascinating about ClearCorrect: an administrative agency decision about idiosyncratic facts and perhaps the driest issue of statutory construction that one could imagine could have captivated both the legal community and the public press to have spawned, beyond Professor Kumar\u27s article, pages upon pages of legal briefing, high-visibility news reports, and even a comparison by the chief judge of the U.S. Court of Appeals for the Federal Circuit to one of the most important decisions of patent law

Rethinking Consideration in the Electronic Age

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding thesuitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework working in tandem with the intellectual property laws is the appropriate legal structure to govern FOSS transactions. Our discussion holds implications for the understanding ofconsideration doctrine and contract law generally outside of the FOSS example and, indeed, for collaborative development and electronic agreements generally. The article is thus an exercise in understandingconsideration doctrine\u27s past and future

Working Without Chevron: The PTO as Prime Mover

Through a proliferation of post-issuance administrative proceedings, the U.S. Patent and Trademark Office (PTO) has become a major player in the fate of patents after their initial examination and grant. In combination with the PTO’s more traditional roles in initial examination and general guidance, new post-issuance proceedings enable the PTO to help steer the development of substantive patent law even without general provision of high-level Chevron deference for the agency’s interpretations of substantive aspects of the U.S. Patent Act. Contrary to some commentators’ suggestions, congressional authorization for new post-issuance proceedings does not appear to have included an implicit delegation of interpretive authority generally warranting Chevron deference on such matters. But the PTO can still accomplish much with lower-level deference and the advantages that its common “first mover” position provides

Rethinking Consideration in the Electronic Age

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework working in tandem with the intellectual property laws is the appropriate legal structure to govern FOSS transactions. Our discussion holds implications for the understanding of consideration doctrine and contract law generally outside of the FOSS example and, indeed, for collaborative development and electronic agreements generally. The Article is thus an exercise in understanding consideration doctrine\u27s past and future