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The Research Patent
Get PDFThe patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law\u27s broad goal of protecting and promoting scientific and technological advances.
This Article addresses this problem by proposing a new form of intellectual property--a research patent. This regime would allow inventors to obtain patents on research inputs and extract their full value through licensing and enforcement. Research patents would impose minimal administrative costs on the patent system and ultimately promote the disclosure, development, and use of early-stage inventions. At a broader level, the proposed regime raises the theoretical question of how allowing patent protection on early-stage inventions like research inputs serves patent law\u27s instrumental justification of promoting scientific progress. It also raises significant normative and policy questions about technology-specific patentability standards and their role in furthering the goals of the patent system
Intellectual Property as a Determinant of Health
Get PDFPublic health literature has long recognized the existence of determinants of health, a set of socioeconomic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are seldom treated as an integral part of analyses using these frameworks, even though IP bears direct effects on the dynamics of several determinants of health, such as access to health goods and health services.
This Article conceptualizes post-Trade-Related Aspects of Intellectual Property Rights (TRIPs) IP as a contributing element to the literature on the socioeconomic determinants of health. IP norms and policies have long been understood as playing a role in outcomes that closely align with determinants frameworks, but interventions inspired by institutions relying on determinants frameworks routinely fail to consider the role of international IP regimes. This Article explores two consequences of this dissociation: first, it argues that TRIPs-implemented IP materially affects several determinants of health, both at the social and economic levels; and second, it argues that IP should be regarded on equal footing with other canonically recognized determinants of health. While taking steps towards the development of an IP framework that can be articulated with, and incorporated by, literature on the determinants of health, the Article presents three short case studies on pharmaceutical and agricultural technologies-—HIV prophylactic drugs (Truvada); drugs and vaccines needed for epidemic and pandemic preparedness (Ebola vaccines and COVID-19 treatments like remdesivir); and genetically modified rice crops
Pornography-Based Sex Trafficking: A Palermo Protocol Fit for the Internet Age
Get PDFThe United Nations Palermo Protocol provides an international framework for regulating human trafficking with aims of increasing perpetrator prosecution and victim rehabilitation. Signatory nations implement this resolution through domestic legislation. Discrepancies across these statutes result in dangerous jurisdictional gaps and chaotically varied law enforcement approaches. Though legal scholarship rarely addresses the topic, pornography-based sex trafficking provides a clear example of this trend. The unique digital features of the internet compound these challenges. This Note seeks to close procedural gaps and alleviate policing frustrations through a proprietary examination of the Protocol’s “exploitation” definition and suggests an amendment to the Protocol that uniformly criminalizes coerced pornography across all signatory nations
The Personification of the Partnership
Get PDFWhat does it mean to say a business association is a legal person? The question has shadowed the law of business organizations for at least two centuries. When we say a business is a legal person we may be claiming that the law distinguishes its assets, liabilities, and obligations from those of its owners; or that it has a “real will” and personality apart from its owners; or that it in some way can carry or assert rights generally ascribed to natural persons. This Article sheds new light on these old questions by looking at an oft-overlooked business form, the partnership, and at once-fierce debates over just what the partnership is. In the decades around the turn of the twentieth century scholars and practitioners hotly debated whether the partnership was an “aggregate” or “entity” and whether the law should treat it as a separate legal person, debates which culminated in the drafting of the Uniform Partnership Act (1914). Central to these disputes was a now-forgotten facet of legal personhood: the moral consequences of treating a business association as a distinct legal person
Promoting Patent Practitioner Diversity: Expanding Non-JD Pathways and Removing Barriers
Get PDFThe patent field suffers from a reciprocal problem: the cost of becoming a Registered Patent Attorney is high, and the diversity of the patent bar is low. The high cost of law school tuition (over $50,000 per year at some schools) prices out individuals from less privileged backgrounds, thereby decreasing the number of diverse candidates who could become Registered Patent Attorneys. The relatively low number of students with science, technology, or engineering (STE) degrees also restricts the number of diverse candidates who could become Registered Patent Attorneys. These factors contribute to a lack of diversity in the patent bar, reflecting poorly on the profession. An estimated 30 percent of registered patent practitioners are women, and an even lower percentage are racial minorities. The United States is currently at a critical juncture in the fight against systemic racism. It is incumbent upon the patent ecosystem to increase racial and gender equity in the profession because it is simply the right thing to do. This Article recommends increasing the diversity of patent practitioners by: (1) expanding avenues for individuals who aspire to become patent practitioners but want to avoid the burdensome time and financial commitments of a traditional Juris Doctorate (JD) program which artificially raises the costs of patent legal services, and (2) removing systemic barriers these individuals face at the United States Patent and Trademark Office (USPTO). These actions should increase diversity in the patent profession. They should also provide an economic benefit by (i) increasing innovators’ access to representation by patent practitioners and (ii) decreasing innovators’ cost of patent protection through representation by lower-cost Registered Patent Agents
Let Me Get My Glasses, I Can’t Hear You: Sheet Music, Copyright, and Led Zeppelin
Get PDFMusical copyright infringement cases are experiencing an identity crisis. The crisis is that courts are beginning their analyses of the similarities between compositions by examining visual, rather than aural, evidence. Prior to the 1976 Copyright Act, copyright protection extended only to musical works reduced to sheet music. That sheet music, which is filed with the US Copyright Office (Copyright Office) as a “deposit copy,” represents the sum of the composition’s copyright protection. Even though Congress amended the Copyright Act to allow for sound recordings of a composition to function as a deposit copy post-1976, courts—particularly the Ninth Circuit—begin evaluating musical similarity by using their eyes, even though music is an art form created for the ears. This sheet music requirement was and continues to be particularly burdensome for artists who do not read or write sheet music, which amplifies deep-seated racial disparities in access to copyright protection. Contemporary litigation has crafted a work-around where sound recordings can be registered as a derivative “arrangement” of the composition, but this solution misses the point. Regardless of what sheet music purports to represent, any written arrangement fails to capture a composition’s full scope. Music, after all, is not a visual medium.
By contrast, this Note suggests that the Copyright Office allows for a singular supplementation of the original deposit copy, which would permit artists to replace the original sheet music deposit with a sound recording deposit. With the passage of the Music Modernization Act, Congress has exhibited a willingness to extend copyright protection. This Note urges Congress to go one step further and permit sound recordings to serve as evidence for all, rather than some, compositions to create a more equitable scope of protection for artists, regardless of their composition process
Pausing the Game: Esports Developers’ Copyright Claims to Prevent or Restrict Tournament Play
Get PDFUnlike traditional sports, esports are-—at their core—-video games, which must be designed and programmed by a game company. These video game developers are the copyright owners of the esports titles they create, which, in turn, results in continued developer control even after a player has purchased or downloaded the game. Because there is no relevant court precedent that is directly applicable to the world of esports, game developers unimpededly exert their copyright authority in order to restrict third-party tournaments that utilize their games, and in some cases, prevent those events from occurring altogether. This use of copyright authority is an overly broad construction of copyright law that deprives gaming communities of valuable events and fails to protect one of the most important interests of the copyright holder: consumer trust.
This Note argues that control over third-party tournaments does not fall within the rights guaranteed to copyright owners by the Copyright Act of 1976. While esports developers should maintain some level of control over their titles, the right to conduct tournaments for their games is one that should not be held exclusively. This Note proposes a compulsory licensing scheme for esports titles as a superior alternative to the current approach. After publishing its game, a developer would register its title with a licensing collective, which could grant conditional licenses to any third party that wishes to organize tournaments using that game. This scheme sufficiently balances the interests of both video-game developers and third-party tournament organizers
Worker Voice and Corporate Governance: Putting Words into Actions
Get PDFTwo decades ago, Margaret Blair and I edited a book focused on governance of modern corporations. At the time it was evident that the dominant paradigm governing corporate governance and behavior centered on maximizing shareholder value. This was a shift in practice that began in the 1980s and was endorsed in 1997 by the Business Roundtable, when it recanted on its 1990 statement that supported a broader stakeholder view of corporate responsibilities.
The effects of the shift from a stakeholder to a shareholder-maximizing set of practices have been devastating for American workers and the overall economy. It reinforced and accelerated managerial efforts to avoid unions and the break from norms and patterns of wage determination that had been established through collective bargaining
Dodge v. Ford: What Happened and Why?
Get PDFBehind Henry Ford’s business decisions that led to the widely taught, famous-in-law-school Dodge v. Ford shareholder primacy decision were three industrial organization structures that put Ford in a difficult business position. First, Ford Motor had a highly profitable monopoly and needed much cash for the just-begun construction of the River Rouge factory, which was said to be the world’s largest when completed. Second, to stymie union organizers and to motivate his new assembly-line workers, Henry Ford raised worker pay greatly; Ford could not maintain his monopoly without sufficient worker buy-in. And, third, if Ford explicitly justified his acts as in pursuit of the monopoly profit in the litigation, the Ford brand would have been damaged with both his workforce and the car buyers. The transactions underlying Dodge v. Ford and resulting in the court order that a very large dividend be paid should be reconceptualized as Ford Motor Company and its auto workers splitting the “monopoly rectangle” that Ford Motor’s assembly line produced, with Ford’s business requiring tremendous cash expenditures to keep and expand that monopoly. Hence, a common interpretation of the litigation setting-—that Ford let slip his charitable purpose when he could have won with a business judgment defense-—should be reconsidered. Ford had a true business purpose to cutting back the dividend—spending on labor and a vertically integrated factory to solidify his monopoly and splitting the monopoly profit with labor-—but he would have jeopardized the strategy’s effectiveness by boldly articulating it.
The existing main interpretations of the corporate law decision and its realpolitik remain relevant—-such as Ford seeking to squeeze out the Dodge brothers by cutting the Ford dividend to deny the Dodge brothers cash for their own car company. But those interpretations must take a back seat, as none fully encompasses the industrial setting-—of monopoly, incipient union organizing, and a restless workforce. Without accounting for Ford Motor’s monopoly, the River Rouge construction, and the related labor tensions, we cannot fully understand the Dodge v. Ford controversy. Stakeholder pressure can more readily succeed in a firm having significant economic rents, a setting that seems common today and was true for Ford Motor Company in the 1910s
The Perfect Match: Solving the Due Process Problem of Signature Matching with Federal Agency Regulation
Get PDFLocal election commissions in the United States disenfranchise Americans when they erroneously reject voters’ mail-in ballots for failed signature matches. Disenfranchisement is not only problematic because it is dangerous to the health of American democracy, but also because signature matching violates the procedural due process protections voters are entitled to when they exercise their right to vote. Furthermore, the practice of signature matching is one of many ballot access restrictions that disproportionately impact minority voters under the guise of voter fraud prevention. Expanding the Election Assistance Commission’s mandate to allow it to develop more accurate methods of ballot verification can reduce the risk of erroneously depriving a person of the right to vote. Currently, most voting-rights-related suits are brought under the Fourteenth Amendment as equal protection or substantive due process claims. The few procedural due process claims that are made assert that the right to vote is protected as a liberty interest.
The right to vote is more properly framed as a property interest because eligible people are entitled to the right through state statutes. Moreover, an executive agency is well equipped to solve a procedural due process problem because the law demands that the agency’s rules and regulations be supported with adequate data and sound reasoning, thereby reducing the risk of erroneous deprivation of the right at stake. Ensuring that every eligible voter who wishes to cast a ballot can do so is essential to maintaining the public’s faith in democracy, and thereby essential to maintaining democracy itself