Mitchell Hamline School of Law
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Stories Mediation Parties Tell, Part 3 (“Mediation Rashomon”: What a Plaintiff Claims to Have Heard; What a Mediator Claims to Have Said)
No full textHelp Was Not on the Way: Intellectual Property Liability Relief in a Pandemic Era
Get PDFOn January 21, 2020, the United States recorded its first case of COVID-19. By April of that same year, numerous hospitals across the nation had exhausted entire reserves of personal protective equipment (PPE), with looming uncertainty as to when they would be replenished. As infection numbers increased exponentially, global demand for some types of PPE increased by 1000%.
Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From creating cloth masks to ventilator pistons, nonprofits and everyday citizens were able to partially alleviate a need that neither the private sector nor the government could address adequately.
Extensive potential intellectual property (IP) infringement liabilities exist for these well-meaning volunteers. For example, using open-source, freely-dispersed blueprints could in fact be an unwitting violation of an obscure, pre-existing invention whose patent is buried deep within the unwieldy database of the U.S. Patent and Trademark Office. Moreover, the threat of liability extends beyond micromanufactuers to include also distributors, distribution facilitators, and those who circulate patented plans or copyrighted ideas.
Currently, no defenses to such infringement exist, dissuading would-be heroes from assisting during a great time of need. As one recent commentary notes, “[t]he threat of infringement also dampens the ability to innovate under conditions of emergency, intensifying the tension between the protection of IP and the protection of human lives.” Defendants could, however, look to other legal doctrines. In analogizing intellectual property to the common law, one might argue for a Good Samaritan doctrine or to the necessity defense to trespass from tort law. As in landlord-tenant law, to the extent that rents for real property have been deferred during the time of the pandemic, perhaps certain instances of intangible property “rent seeking” by the owners of patents and copyrights might be justifiably put on hold as well. Defendants in IP lawsuits could also look to creative applications of existing exceptions in patent law such as march-in rights and the Defense Protection Act.
Using this PPE and medical device production dilemma as a case study, this Article will consider the logistical and legal obstacles to accommodating public interest uses of intellectual property. My analysis will recommend a procedure that would limit or defer liability and provide appropriate remedies, and also would incentivize crucial and well-meaning acts in times of pandemic
Police Accountability: How Narrowing the Scope of Arbitration and Limiting Procedural Protections Can Promote Social Trust and Justice
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An Unexpected Result of Gender Equality Initiatives in Sports - The Sexualization of Female Athletes
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The Direct-Derivative Distinction, the Special Litigation Committee, and the Uniform Act: A Response to Professor Weidner
Get PDFThe Unfortunate Role of Special Litigation Committees in LLCs has a deeply pejorative view of the Uniform Law Commission “second generation” limited liability company act, and that view extends far deeper than the target suggested by the article’s title. The article’s fundamental attack is on the distinction between direct and derivative claims; the criticisms of ULLCA’s provisions on special litigation committees depend on that attack. In support of its wide-ranging attack, The Unfortunate Role seeks to marshal history, policy, logic, and a research study pertaining to the outcome of derivative claims. Unfortunately, however, the article (i) misapprehends the drafting history of uniform acts and the case law origins of the direct-derivative distinction; (ii) asserts and relies on a policy with destructive practical consequences for closely held businesses; (iii) misunderstands the logical ramifications of an LLC being a legal person separate from its members; and (iv) relies heavily on a study based on inapposite data–i.e., a data set comprising mostly cases involving public corporations, with an additional focus on cases decided by Delaware courts. Thus, in this author’s opinion, The Unfortunate Role fails on every front the article seeks to attack
