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We study all of the nearly 4.5 million patents, filed on or after May 29, 2000, that were issued by the United States Patent and Trademark Office since 2005. We find that most patents (63.6%) get at least some “patent term adjustment” (PTA)—an additional patent term to compensate for delays in patent prosecution. The patents that get PTA get more than a year on average (411 days, a median of 290 days), and more than 25% of all patents have more than a year of extra term. Some get as much as ten years of extra term. Despite its imperfections, the PTA system works pretty well at achieving the goal of compensating patentees for patent prosecution delay. But we would be better off with a world in which delay wasn’t nearly as common as it is, because adding a year at the end of a patent’s life is not the same as having an extra year at the beginning. And the PTA system ends up disproportionately being used by patent trolls in litigation, a result that seems socially unproductive. We offer some suggestions for how to reduce delay and describe the more efficient PTA that could potentially result. [ABSTRACT FROM AUTHOR]

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst-case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property (IP) law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, the Audio Home Recording Act, and the Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of these systems lie in desuetude. This result challenges the conventional wisdom about regulatory capture by special interests, suggesting there is less to fear from legislative capture than most legal scholars believe in intellectual property and beyond. The puzzle is why, when given free rein to design the rules that govern them, interest groups have done such a poor job in seizing that advantage. This Article brings together two scholarly debates. The first is within intellectual property: should IP doctrines be tailored by industry, or comprise rules of general application? The second is within public choice: how risky is regulatory capture by special interests? The Article identifies two key reasons for the ineffectiveness of customized regimes. First, industry groups are fragile, fractal-like coalitions of disparate interests; the fault lines between creators and copyists are often points of fracture. Second, interest groups embed current business models and technologies into these systems, making regulation vulnerable to disruptive innovation. It explores how these findings affect proposals for customized regimes for artificial intelligence, weather data, traditional knowledge, privacy, and fashion, and concludes that customized regimes are less effective and threatening than previously thought. [ABSTRACT FROM AUTHOR]

The article delves into the intersection of trademark law and the First Amendment, particularly focusing on the application of the Rogers test in cases involving expressive works and parody. It discusses the evolution of trademark law from its traditional function of preventing consumer confusion to also protecting the reputation of marks, leading to conflicts with freedom of expression.

Consumers' right to repair their products is under attack. Manufacturers have decimated this long-held right by making parts unavailable, preventing products from working, and imposing software restrictions. Farmers can no longer repair tractors, medical professionals can't fix ventilators, and military officers are stuck with broken equipment. Although competition law would seem to be a natural fit to address this conduct, antitrust law has erected very high hurdles, especially on "Kodak" claims involving "aftermarket" service and parts. This article offers a framework for the Federal Trade Commission (FTC) to challenge this behavior as an "unfair method of competition" under Section 5 of the FTC Act. While such an approach could be applied without limits, I propose modestly extending Kodak in a predictable manner consistent with the decision's rationale. In particular, my application builds on the "gap filler" rationale introduced by Susan Creighton and Thomas Krattenmaker that applies when an element of an antitrust claim is not satisfied. I argue that courts' unwillingness to find market power is addressed by practical indicators like multiple manufacturers' restrictive terms, users' lack of knowledge, and timesensitive uses, each of which has dramatically increased in the 30 years since Kodak. A competition cause of action is needed because the harms suffered are as severe as any that have appeared in antitrust cases: a loss of lives in hospitals and on battlefields, and a loss of livelihoods for farmers unable to harvest crops. Such a case is buttressed by a lack of procompetitive justifications. Comprehensive inquiries by the FTC and U.S. Food and Drug Administration (FDA) have cast doubt on manufacturers' safety-based rationale. And Section 5's consideration of policy shows how their other primary justification--IP--is not convincing. In particular, an analysis of design patents, trade secrets, trademarks, and copyrights (including the DMCA) reveals how the incentives/access tradeoff strongly supports the latter. Finally, my framework promises to bridge the divide between "neo-Brandeisians" and other antitrust scholars, as consumer interests overlap with those of workers, user innovators, and independent repair shops. Given repair restrictions' questionable justifications and severe effects on lives and livelihoods, a competition-based tool promises real benefits. [ABSTRACT FROM AUTHOR]

Multifactor tests are challenging for judges to apply consistently and accurately. Poorly done, they could result in law without order. How courts determine trademark infringement provides a case study for what experimental psychology and artificial intelligence can offer to reduce bias and variability in multifactor tests. In trademark law, judges must determine the likelihood of consumer confusion to decide whether a mark infringes upon a trademark holder's rights. Plenty of commentaries have criticized the likelihood of confusion tests, but none offer a comprehensive analysis linking the impact of the legal standard's disorder with the root causes of that disfunction. Likewise, none demonstrate how doctrine and technology can work hand in glove to simplify this puzzling standard. This Article draws on empirical studies, case law, and the latest experimental psychology and artificial intelligence literature to shift the debate from critiquing to simplifying the likelihood of confusion standard. It explains how three core factors, combined with two safe harbors and today's deep learning algorithms enable courts to reach consistent and accurate results. The simplified framework will promote fair play, safeguard expressive uses, and enhance access to justice. These takeaways apply more broadly and address defects common to multifactor tests. [ABSTRACT FROM AUTHOR]

The article presents the discussion on designing patent being not a copyright-based system. Topics include making design patent redundant of utility patent or enabling parties for using design patent as a backdoor form of utility patent protection; and a method of producing imitation grilling marks on food, imitation wood flooring, and an imitation hamburger.

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation's patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court's 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an "inventive" application of the discovery. The following year, the Court ruled that discoveries of the location and sequence of DNA compositions that are useful in diagnosing diseases are ineligible for patent protection in Association for Molecular Pathology v. Myriad Genetics, Inc. Additionally, in its 2014 Alice Corp. v. CLS Bank International decision, the Court ruled that software-related claims are ineligible for patent protection unless the abstract ideas or mathematical formulas disclosed are inventively applied. These decisions sent shock waves through the research, technology, business, and patent communities. Medical diagnostics companies experienced a dramatic narrowing of eligibility for core scientific discoveries. Reactions within the information technology community have been mixed, with some applauding the tightening of patent eligibility standards on software claims and the opportunity to seek early dismissal of lawsuits, particularly those filed by nonpracticing entities, and others criticizing the shift in patent eligibility. Several members of the Federal Circuit bluntly criticized the Supreme Court's shift in patent eligibility standards on jurisprudential and policy grounds. Additionally, the Patent Office has struggled to apply the Supreme Court's new and rapidly evolving standards. As this sea change unfolded, many patent practitioners, scholars, PTO officials, and jurists hoped that the Supreme Court would provide fuller and clearer guidance on patent eligibility standards. In the aftermath of the Supreme Court rejecting the invitation to reexamine its Mayo decision, many stakeholders have shifted their attention toward legislative reforms. This Report summarizes the presentations and discussion of a workshop that included leading industry representatives, practitioners, scholars, policymakers, and a retired jurist exploring the legal background and effects bearing on legislative action. [ABSTRACT FROM AUTHOR]

The People's Republic of China has become a world leader in both patent applications and patent litigation after the Chinese government enacted new policies to stimulate domestic innovation and patent activities. These major developments have made China an integral venue of international patent protection for inventors and entrepreneurs. However, due to the lack of judicial transparency before 2014, most people had virtually no access to Chinese patent litigation data and knew little about how Chinese courts adjudicated patent cases. Instead, outside observers were left with a variety of impressions and had to guess how the courts adjudicates these cases based on the plain texts of the Chinese Patent Law and the limited number of cases released by the press. However, starting January 1, 2014, China mandated public access to all judgments via a database called China Judgements Online (CJO), making empirical studies possible. This Article analyzes all publicly available final patent infringement cases decided by local People's Courts in 2014. Surprisingly, findings in this Article contradict the long-standing beliefs held by many people about patent enforcement in China. One prominent example is that foreign patent holders were as likely as domestic patent holders to litigate and foreign patent holders received noticeably better results--specifically, higher win rates, injunction rates, and average damages. Another example is that plaintiffs won in 80.16% of all patent infringement cases and automatically got permanent injunctions in 90.25% of cases where courts found patent infringement. These new findings indicate that patent protection in China is stronger than once believed. [ABSTRACT FROM AUTHOR]

The emergence ot platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and tegulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship-the platform, or "macrobrand" and the platform service provider, or the "microbrand." As we argue,' the macrobrand and microbrand interact with trademark law-and one another-in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension between these two formations, this Article suggests a two-prong approach utilizing both legislative adjustments to trademark law, as well as common law adjustments, to modernize trademark doctrine for the digital economy. [ABSTRACT FROM AUTHOR]