The Anti-Economy of Fashion; An Openwork Approach to Intellectual Property Protection

Fashion’s cultural connections provide the groundwork for a theory to resolve the critical questions of protection for works that draw strongly on exogenous inputs. This article proposes that narrow protection for fashion is both economically justified, theoretically sound, and beneficial to the field because it facilitates spillovers in a manner that allows others to create the endless variations that are the lifeblood of this vibrant industry. Such protection relies on a theory of openworks, which applies to designs that have a high level of input from outside of the creator’s realm of activity. In fashion, inspiration that derives from the street, fine art, music, trends, and other sources of culture. Further, such works have a significant level of interaction with those who engage with the work. Once a piece leaves a designer’s hands, wearers inhabit the work and provide individualized authorial inputs by mixing, contextualizing, and visually modifying the designer’s original vision. Unlike a static sculpture, the wearer makes fashion his or her own. This creatively open structure, which is inherent in the medium, warrants a correspondingly less restrictive form of intellectual property protection than that provided by the current copyright and patent systems. To further justify protection for fashion design, this article supplements the traditional economic analysis with one that draws from Pierre Bourdieu’s concept of works of cultural production. Such works are not valuable based on function alone, but rather because they include expressive content that contributes to our broader societal conversation. The sale of such works operates in an anti-economy that privileges noneconomic capital, including reputational and symbolic value, at the expense of short-term profitability. Instead of seeking to maximize sales, designers endeavor to establish their reputations as aesthetic leaders in a manner that a classic economic analysis would consider irrational. Yet these qualities are critical to the maintenance of the anti-economy of cultural production, which depends on reputational capital to establish long-term economic viability. To properly analyze the effects of copying on this industry, this article applies creativity theory, economics, and anti-economics to fully evaluate the potential impact of protection in the industry

Ordinary Creativity in Patent Law: The Artist within the Scientist

Patent law is intended to promote the creativity of scientists and engineers. The system recognizes that the work of the individual is the engine that ultimately increases the state ofscientific knowledge. As economist Paul Romer recognized, Technological advance comes from things that people do. Furthering creativity represents the constitutional, theoretical and doctrinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and proposes how patent law can formulate a legal conception of creativity. To undertake this inquiry, this work focuses on the U.S. Supreme Court\u27s KSR International Co. v. Teleflex Inc. decision. When considering the appropriate standard for assessing nonobviousness under 35 U.S.C. § 103, the KSR Court used the phrase ordinary creativity to refer to the capabilities of the person of ordinary skill, a standard roughly analogous to tort law\u27s reasonable person. KSR\u27s choice of this phrase is intriguing, particularly because creativity as a human attribute is notoriously difficult to define. In order to provide a theoretical background that leads to an understanding of KSR\u27s ordinary creativity standard, this work explores creativity from an interdisciplinary perspective. Further, the work proposes guidelines that may be used to implement KSR\u27s flexible standard. More broadly, this work proposes that these interdisciplinary sources can be useful to the field\u27s understanding of the process of inventio

Brief of Intellectual Property Law Scholars As Amici Curiae in Support of Neither Party, WesternGeco LLC v. Ion Geophysical Corp., No. 16-1011, US Supreme Court

This amici curiae brief was filed on behalf of Intellectual Property Law Scholars in WesternGeco LLC v. Ion Geophysical Corp. in the U.S. Supreme Court. The question presented is: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). In RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), the Supreme Court articulated a two-step method for assessing the extraterritorial reach of a US statute: 1. A court should determine whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. If the presumption is rebutted, the statute may have extraterritorial reach. 2. But even if the presumption has not been rebutted, a court should look at the focus of the statute. If the conduct relevant to the statute\u27s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. The brief of amici curiae makes the follow points: 1. The Supreme Court has not squarely answered the question as to whether the presumption against extraterritoriality applies separately to remedial provisions of a statute generally (here whether it applies to § 284). We argue it does. 2. We argue that the territorial reach § 284 necessarily depends the relevant provision of § 271 used to find liability. Here, under § 271(f), the presumption is rebutted (though it would not be generally for a case under § 271(a), with NTP v. Research in Motion may be a counter-example when one looks at the focus at step 2)). 3. We also argue that the Court should offer more guidance as to what happens even if the RJR test is satisfied. RJR Nabisco seems to operate in binary fashion -- either the statute has extraterritorial reach or it doesn\u27t. But Microsoft Corp. v. AT&T Corp., and earlier Supreme Court decision also interpreting 35 U.S.C. § 271(f), suggests that the presumption may still have a role in interpreting a statute. We offer two suggestions on how the presumption should operate in this context. First, courts should seriously and formally consider issues of comity and potential conflicts with foreign law in assessing whether to apply U.S. law extraterritorially. Second, that territoriality should remain relevant in assessments of proximate cause

Hopf algebras and Markov chains: Two examples and a theory

The operation of squaring (coproduct followed by product) in a combinatorial Hopf algebra is shown to induce a Markov chain in natural bases. Chains constructed in this way include widely studied methods of card shuffling, a natural "rock-breaking" process, and Markov chains on simplicial complexes. Many of these chains can be explictly diagonalized using the primitive elements of the algebra and the combinatorics of the free Lie algebra. For card shuffling, this gives an explicit description of the eigenvectors. For rock-breaking, an explicit description of the quasi-stationary distribution and sharp rates to absorption follow.Comment: 51 pages, 17 figures. (Typographical errors corrected. Further fixes will only appear on the version on Amy Pang's website, the arXiv version will not be updated.

Claudin 4 Is Differentially Expressed between Ovarian Cancer Subtypes and Plays a Role in Spheroid Formation

Claudin 4 is a cellular adhesion molecule that is frequently overexpressed in ovarian cancer and other epithelial cancers. In this study, we sought to determine whether the expression of claudin 4 is associated with outcome in ovarian cancer patients and may be involved in tumor progression. We examined claudin 4 expression in ovarian cancer tissues and cell lines, as well as by immunohistochemical staining of tissue microarrays (TMAs; n = 500), spheroids present in patients’ ascites, and spheroids formed in vitro. Claudin 4 was expressed in nearly 70% of the ovarian cancer tissues examined and was differentially expressed across ovarian cancer subtypes, with the lowest expression in clear cell subtype. No association was found between claudin 4 expression and disease-specific survival in any subtype. Claudin 4 expression was also observed in multicellular spheroids obtained from patients’ ascites. Using an in vitro spheroid formation assay, we found that NIH:OVCAR5 cells treated with shRNA against claudin 4 required a longer time to form compact spheroids compared to control NIH:OVCAR5 cells that expressed high levels of claudin 4. The inability of the NIH:OVCAR5 cells treated with claudin 4 shRNA to form compact spheroids was verified by FITC-dextran exclusion. These results demonstrate a role for claudin 4 and tight junctions in spheroid formation and integrity

Effects of antiplatelet therapy on stroke risk by brain imaging features of intracerebral haemorrhage and cerebral small vessel diseases: subgroup analyses of the RESTART randomised, open-label trial

Background Findings from the RESTART trial suggest that starting antiplatelet therapy might reduce the risk of recurrent symptomatic intracerebral haemorrhage compared with avoiding antiplatelet therapy. Brain imaging features of intracerebral haemorrhage and cerebral small vessel diseases (such as cerebral microbleeds) are associated with greater risks of recurrent intracerebral haemorrhage. We did subgroup analyses of the RESTART trial to explore whether these brain imaging features modify the effects of antiplatelet therapy

Meta-analysis of genome-wide association studies identifies novel loci that influence cupping and the glaucomatous process

Glaucoma is characterized by irreversible optic nerve degeneration and is the most frequent cause of irreversible blindness worldwide. Here, the International Glaucoma Genetics Consortium conducts a meta-analysis of genome-wide association studies of vertical cup-disc ratio (VCDR), an important disease-related optic nerve parameter. In 21,094 individuals of European ancestry and 6,784 individuals of Asian ancestry, we identify 10 new loci associated with variation in VCDR. In a separate risk-score analysis of five case-control studies, Caucasians in the highest quintile have a 2.5-fold increased risk of primary open-angle glaucoma as compared with those in the lowest quintile. This study has more than doubled the known loci associated with optic disc cupping and will allow greater understanding of mechanisms involved in this common blinding condition