Algorithms in Business, Merchant-Consumer Interactions, & Regulation

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In so doing, algorithms raise new theoretical considerations on information asymmetry and power imbalances in merchant–consumer interactions and multiply existing biases and discrimination or create new ones in society. Against this backdrop of the concentration of algorithmic decision-making in merchants, the traditional understanding of consumer protection is overdue for change, and normative debate about fairness, accountability, and transparency and interpretive considerations for non-discrimination is necessary. The theory that notice and choice in data protection laws and consumer protection laws are sufficient in an algorithmic era is inadequate, and countervailing consumer empowerment is necessary to balance the power between merchants and consumers. While legislative activity and regulation have conceivably increased consumer-empowerment, such measures may provide a limited or unclear response in the face of the transformative nature of algorithms. Instead, policy makers should consider responsible algorithmic code and other proposals as potentially effective responses in the analysis of socio-economic dimensions of algorithms in business

3D Bioprinting Patentable Subject Matter Boundaries

3D bioprinting combines emerging 3D printing technologies with synthetic biology. The promise of 3D bioprinting technology is to fabricate organs for transplantation, treat burn victims with in vivo skin repair, and create wearable microbiomes. 3D bioprinting can successively build, repair, or reproduce living human cells. This capability challenges eligible subject matter doctrine in U.S. patent law because the law has no brightline standard for patent eligibility for nature-based products. As 3D bioprinting technologies mature, U.S. patent law will need to respond to situations where living and nonliving worlds merge. This Article proposes a Mixed-Scanned-Transformed standard to supplement U.S. patent law\u27s markedly different characteristics examination of nature-based products. The markedly different standard arose from the Chakrabarty case in 1980 and is most recently informed by the Myriad case in 2013, but neither case involved merging living and nonliving worlds. By applying this newly proposed standard, 3D bioprinted materials would likely be upheld as patentable subject matter. The proposed Mixed-Scanned-Transformed standard and proposed clarity on what is not a human organism will allow U.S. patent law to become more bright-line towards 3D bioprinting inventions

Intellectual Property Through a Non-Western Lens: Patents in Islamic Law

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population. Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological debates under classical Islamic law, creating an undefined scope of patent protection under international agreements. On the one hand, patents are not mentioned in sources of Islamic law, which, unlike Western systems, gives a religious guide to Muslim societies, and which some Muslim scholars argue create impermissible monopolistic effects. On the other hand, patents should be implicitly derived based on human reasoning of a divine law with theoretically and theologically sound commercial justifications. This Article’s thesis is that patents are permissible in an Islamic legal system. It develops a positive, normative framework and justifications for the construct of a theory of patents within Islamic law, provides normative implications within a commercial lens, and provides prescriptions for patentable subject matter and public interest considerations in a modern Islamic legal system. Recognizing the role and need of patents in Islamic legal systems is a pressing issue for innovation policy and requires articulation of conceptual, theological, and theoretical principles

National Cybersecurity Innovation

National cybersecurity plays a crucial role in protecting our critical infrastructure, such as telecommunication networks, the electricity grid, and even financial transactions. Most discussions about promoting national cybersecurity focus on governance structures, international relations, and political science. In contrast, this Article proposes a different agenda and one that promotes the use of innovation mechanisms for technological advancement. By promoting inducements for technological developments, such innovation mechanisms encourage the advancement of national cybersecurity solutions. In exploring possible solutions, this Article asks whether the government or markets can provide national cybersecurity innovation. This inquiry is a fragment of a much larger literature on various innovation policy options (including patents, prizes, grants, and research and development tax credits). It requires determining whether national cybersecurity is a public good and an examination of market failure and government failure. Along the way, it draws on a property-liability rules theoretical framework to argue that the patent system\u27s invention secrecy restrictions and government patent use are ineffective for national cybersecurity innovation. On a normative level, the interface between government intervention and markets presents innovation mechanisms for national cybersecurity. Turning to prescriptions, expansion of prizes should rapidly promote national cybersecurity innovation, and reciprocal public-private research and development interactions should gradually multiply knowledge spillovers

Data-Centric Technologies: Patent and Copyright Doctrinal Disruptions

Data-centric technologies create information content that directly controls, modifies, or responds to the physical world. This information content resides in the digital world yet has profound economic and societal impact in the physical world. 3D printing and artificial intelligence are examples of data-centric technologies. 3D printing utilizes digital data for eventual printing of physical goods. Artificial intelligence learns from data sets to make predictions or automated decisions for use in physical applications and systems. 3D printing and artificial intelligence technologies are based on digital foundations, blur the digital and physical divide, and dramatically improve physical goods, objects, products, or systems. Data-centric technologies have crossed national borders and rapidly attained adoption, even while patent law and copyright law have been slow to respond. This Article focuses on 3D printing and artificial intelligence technologies and their doctrinal disruptions through a conceptual matrix formulation. It describes how recent litigation over data-centric technologies has repercussions for creators and inventors in the protection of data-centric innovations. Data-centric technologies’ doctrinal disruptions necessitate reevaluation of copyright and patent doctrines, which were spawned in an era of human/physical considerations to now including human/digital, non-human/physical, and non-human/digital considerations. The future of patent law and copyright law will be dominated by non-human/digital considerations and will impact innovation policy

Artificial Intelligence Inventions & Patent Disclosure

Artificial intelligence (“AI”) has attracted significant attention and has imposed challenges for society. Yet surprisingly, scholars have paid little attention to the impediments AI imposes on patent law’s disclosure function from the lenses of theory and policy. Patents are conditioned on inventors describing their inventions, but the inner workings and the use of AI in the inventive process are not properly understood or are largely unknown. The lack of transparency of the parameters of the AI inventive process or the use of AI makes it difficult to enable a future use of AI to achieve the same end state. While patent law’s enablement doctrine focuses on the particular result of the invention process, in contrast, this Article suggests that AI presents a lack of transparency and difficulty in replication that profoundly and fundamentally challenge disclosure theory in patent law. A reasonable onlooker or a patent examiner may find it difficult to explain the inner workings of AI. But even more pressing is a non-detection problem—an overall lack of disclosure of unidentified AI inventions, or knowing whether the particular end state was produced by the use of AI. The complexities of AI require enhancing the disclosure requirement since the peculiar characteristics of the end state cannot be described by the inventive process that produced it. This Article introduces a taxonomy of AI and argues that an enhanced AI patent disclosure requirement mitigates concerns surrounding the explainability of AI-based tools and the inherent inscrutability of AI-generated output. Such emphasis of patent disclosure for AI may steer some inventors toward trade secrecy and push others to seek patent protection against would-be patent infringers despite added ex ante costs and efforts. Utilitarian and Lockean theories suggest justifications for enhanced AI patent disclosure while recognizing some objections. Turning to the prescriptive, this Article proposes and assesses, as means for achieving enhanced disclosure, a variety of disclosure-specific incentives and data deposits for AI. It concludes by offering insights for innovation and for a future empirical study to verify its theoretical underpinnings

3D Printing: Digital Infringement & Digital Regulation

3D printing is a rapidly-growing technology that enables creation of three-dimensional solid objects made from a digital Computer Aided Design (“CAD”) file. Patent law issues are particularly relevant and uncertain in the realm of 3D printing. Thus, analysis of the Patent Act is needed to better understand direct infringement (of either the use of a 3D printer, of a CAD file, or under the doctrine of equivalents), indirect infringement, and contributory infringement in the context of 3D printing. A key issue in this analysis is whether a CAD file should be viewed as making the object itself, since 3D printing involves creation of CAD files that can print the physical object at the press of a button. As the rapidly growing field of 3D printing blurs the line between the digital and physical world, it makes sense to develop new regulations and reform existing ones. Moreover, digital regulation must address cross-border digital commerce since separate steps of the 3D printing value chain be easily performed in multiple countries or by multiple actors, and easily transmitted across borders

3D Printing: Digital Infringement and Digital Regulation

3D printing is a rapidly-growing technology that enables creation of three dimensional solid objects made from a digital Computer Aided Design ( CAD ) file. Patent law issues are particularly relevant and uncertain in the realm of 3D printing. Thus, analysis of the Patent Act is needed to better understand direct infringement (of either the use of a 3D printer, of a CAD file, or under the doctrine of equivalents), indirect infringement, and contributory infringement in the context of 3D printing. A key issue in this analysis is whether a CAD file should be viewed as making the object itself since 3D printing involves creation of CAD files that can print the physical object at the press of a button. As the rapidly growing field of 3D printing blurs the line between the digital and physical world, it makes sense to develop new regulations and reform existing ones. Moreover, digital regulation must address cross-border digital commerce since separate steps of the 3D printing value chain be easily performed in multiple countries or by multiple actors, and easily transmitted across borders

Intellectual Property Through a Non-Western Lens: Patents in Islamic Law

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population. Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological debates under classical Islamic law, creating an undefined scope of patent protection under international agreements. On the one hand, patents are not mentioned in sources of Islamic law, which, unlike Western systems, gives a religious guide to Muslim societies, and which some Muslim scholars argue create impermissible monopolistic effects. On the other hand, patents should be implicitly derived based on human reasoning of a divine law with theoretically and theologically sound commercial justifications. This Article’s thesis is that patents are permissible in an Islamic legal system. It develops a positive, normative framework and justifications for the construct of a theory of patents within Islamic law, provides normative implications within a commercial lens, and provides prescriptions for patentable subject matter and public interest considerations in a modern Islamic legal system. Recognizing the role and need of patents in Islamic legal systems is a pressing issue for innovation policy and requires articulation of conceptual, theological, and theoretical principles