Bargaining for Innovation

Reward drives innovation. For this reason, Congress has enacted a system of patents, trademarks, and copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests—mandating disclosure of the innovation while legislating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient for innovation, and innovators are relying on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the public’s interest. It is time to reform public ordering to protect the public’s interest while providing sufficient reward to incentivize innovation

Unintentional Injury Content Assessment in Undergraduate Personal Health and Wellness Courses

The purpose of this research study was to describe course content on unintentional injuries in undergraduate personal health and wellness courses at four year public and private colleges and universities identified by the Eta Sigma Gamma directory in the United States. An instrument was created, validated and tested for reliability, and used to assess course content areas related to unintentional injuries in undergraduate personal health and wellness courses. The sample for the study included 106 participants (N=106) from public and private colleges and universities in 36 states. Chi-square analysis, ANOVA, factor analysis, and MANOVA tests were used to determine if significant differences existed in course content areas based on selected demographic characteristics. Results indicated that college and university faculty members report teaching about unintentional injuries. Findings indicated that significant differences do exist in unintentional injury course content areas. The top five content areas identified by faculty members include water-related injuries, firearm safety, motorcycle injuries, motor vehicle passenger safety, and motor vehicle impaired driving. Factor analysis results revealed that unintentional injury course content areas can be categorized into three groups: personal content, motor vehicle content, and injury content. The level of statistical significance was set at 0.05

Why Sell What You Can License?, Contracting Around Statutory Protection of Intellectual Property

Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses that circumvent public legislation protect neither the public interest nor licensees in the transfer of tangible goods and should not be enforced. The scope of private legislation must be limited to the transfer of goods through the use of licenses, with the primary purpose of augmenting, rather than circumventing, public legislation

Clarifying the Doctrine of Inequitable Conduct

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose, lights the path the United States Court of Appeals for the Federal Circuit should follow in Therasense, setting workable standards for finding inequitable conduct before the United States Patent and Trademark Office

Sowing the Seeds of Protection

Seeds are chattel. As such, seeds are protectable by the same tapestry of public and private ordering as other forms of chattel. However, the distinguishing characteristic of seeds, their method of propagation, and the history of seeds-traditionally viewed as a public good rather than chatteldistort that tapestry. The model of seed distribution thus needs to be refrained in light of the often disparate interests of innovators, producers, and consumers. As with all chattel, there is no single, correct model for distributing seeds, but law and contract may be woven together to strike a balance

Information Age Technology, Industrial Age Laws

The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. Adequate protection is not currently provided for intangible innovations. This lack of protection has wide-ranging implications, especially now as data processing is increasingly migrating to “the cloud,” geographic boundaries are eroding, and intangible technology is advancing in importance. The industrial age laws can incentivize innovation in the information age — and it is time to recognize this before private ordering subsumes the public interest

Patent Boundaries

A patent grants a limited right to exclude others from practicing an invention within the United States, its territories and possessions. Much has been written about the limits of the patent grant and how to determine what the protected invention may be. At the same time, scholars have not systemically analyzed the geographic limitations of United States patents, a critical component of a patentee’s limited right. A patent’s geographical scope is not simple to discern. Commentators have neither analyzed the patent boundaries collectively nor delineated the scope of patent sovereignty on land, in the air and at sea. Technology has spread to every corner of the earth, bringing once hostile territory under the spell of deep water oil drilling, satellite communication systems, within the reach of mobile phone technology and beyond the scope of our current understanding of patent law. United States patents are only enforceable within the United States, which now extends from the International Space Station to the Outer Continental Shelf of the United States. As the limits of technology and geography increase, the delineation of the patent boundaries of the United States becomes increasingly important

The Technological Edge

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required to innovate the less likely it is that the invention is already in the public domain. The technological edge provides the distinction between man’s manufacture and nature’s handiwork

Differentiating the Federal Circuit

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit\u27s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction - the very essence of the court sets it apart from its sister circuit courts of appeals