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Over the past twenty years, patent cases have become a major component of the Supreme Court's shrinking docket. The Court's return to patent law after a long absence has inspired a rich literature theorizing about the Court's agenda and critiquing its decisions. Those analyses, though differing in their particulars, have given rise to numerous conventional wisdoms about the Supreme Court and patent law: that the Supreme Court distrusts the Federal Circuit (the specialized appellate court that has exclusive jurisdiction over patent cases), that the Court places far more trust in the Solicitor General (who represents the executive branch in Supreme Court litigation), and that, for better or worse, the Supreme Court is now a major institutional player in the patent system. But are those conventional wisdoms true? In this Article, we separate myth from reality by presenting a novel quantitative and qualitative study of all patent-related Supreme Court cases since 1982, the year the Federal Circuit began operating. Our study questions whether many of the patent cases decided by the Court have actually been important. Instead, we show that most of the Court's patent-related cases have involved issues far from the substantive core of patent law and are rarely cited by the Federal Circuit. Assessing the Court's impact on patent law, we argue, requires focusing on a small subset of decisions involving the core doctrines of patent validity and infringement. In those decisions, the Supreme Court has been surprisingly deferential to the Federal Circuit. The cases in which the Federal Circuit has performed poorly (at least in the eyes of the Supreme Court) cluster around issues of jurisdiction, procedure, and remedies. We also identify specific types of patent-related cases in which the Solicitor General wins far less frequently than usual. Testing other patent "myths," we find support for the notions that the Supreme Court prefers malleable standards over bright-line rules and that the Supreme Court is less favorable for patent owners than the Federal Circuit. But we also find that Justice Breyer, often cited as the force behind the Court's growing patent docket, did not have an abnormally large influence over patent law. Similarly, specialist Supreme Court litigators, though increasingly involved in patent cases, don't seem to fare any better (or worse) than other lawyers in patent cases. In brief, our findings confirm some conventional wisdoms about the Supreme Court and patent law, disprove others, and offer a glimpse of patent law's future. [ABSTRACT FROM AUTHOR]

Artists, political commentators, and even multinational corporations are increasingly taking existing branded products and modifying them--sometimes to comment on the underlying product, sometimes to make a political or artistic statement unrelated to that product, sometimes to make them look fancier than they are, and sometimes for their own advertising purposes. As ornamenting and customizing existing products has shifted from a personal hobby to a business model, trademark owners have begun to insist that they have the exclusive right to control the appearance of products associated with them or that prominently bear their logos. We call this assertion a claim that there should be an exclusive right to customize. This is a new problem for trademark law. Trademark law doesn't lack for doctrines designed to tackle related problems. Indeed, the problem may be that it has too many doctrines that could potentially be brought to bear. Many of these doctrines point in different directions or apply poorly to common forms of customization. We lay out the approach courts should take to evaluate claims to an exclusive right to customize. We also recommend three modifications to trademark doctrine to broadly protect customization from trademark law without undermining trademark causes of actions against its pernicious forms. [ABSTRACT FROM AUTHOR]

One of the great advantages of digital content has been that, for the last forty years, people have had access to whatever content they want, whenever they wanted it. That is starting to change. We're moving backwards. Content is disappearing--not just becoming available only in limited times or circumstances but becoming entirely unavailable. It doesn't need to be that way. It is now cheap and easy enough to make all content available. If the copyright owner can't or won't continue to provide a published work, others should be permitted to pick up the slack. Fair use should encompass a right of access to published content. That right, like all of fair use, ought to have limits and exceptions. I discuss a number of complications and reasons why copyright owners might lawfully remove content. But a basic right to continued access to published work is consistent with the fundamental purposes of copyright. In the past, we might have aspired to a world in which all the works of history were available forever. That's now an achievable goal. The dead hand control of copyright shouldn't stand in the way. [ABSTRACT FROM AUTHOR]

New technologies disrupt existing industries. They always have, and they probably always will. Incumbents don't like their industries to be disrupted. And they often rely on intellectual property, unfair competition, or related legal doctrines as tools to prevent disruptive entry. What that means is that many of the cases in these areas are really about whether competition from new players can force incumbents to change their business models, generally to the advantage of particular players and the detriment of others. These cases are, in an important sense, all unfair competition cases; they are about the ways in which the law permits new entrants to compete with incumbents. Unfortunately, we lack any comprehensive way of thinking about market disruption in these settings. As a result, courts react quite differently to disruptive technology or business models in different cases. Our goal in this Article is to address the broader question of when competition by market disruption is "unfair." In our view, courts are often overly receptive to market disruption arguments. Courts should intervene to prevent market disruption only when they have very good reasons--reasons connected to the fundamental policy concerns of the legal systems called upon to prevent the disruption. To achieve that goal, we must know what the legitimate ends of the asserted law are. Sometimes the legal doctrine used to prevent market disruption is one--like unjust enrichment, interference with economic advantage, or unfair competition--that doesn't have a clear animating principle. We think those doctrines should be disfavored, and courts should employ them only when they are tied to some independent metric for deciding whether the defendant's conduct is unfair or unjust. Other doctrines, like antitrust and IP, have clearer purposes. There, we can evaluate legal challenges to market disruption by testing the fit between the goals of the statute and its use in a particular case. We suggest a test that helps separate legitimate cases of IP infringement from cases of pure market disruption. Drawn from the antitrust injury doctrine, our test would treat market disruption as relevant to an IP case only if the disruption is traceable to the act of infringement itself. If the plaintiff would suffer the same injury from a market intervention that is not infringing, that injury cannot be evidence of IP infringement. [ABSTRACT FROM AUTHOR]

In Silicon Valley, the most important thing to think about when starting a company is how you're going to end it. The venture capital funding model that dominates the tech industry is focused on the "exit strategy"--the ways funders and founders can cash out their investment. While in common lore the exit strategy is an initial public offering ("IPO"), in practice IPOs are increasingly rare. Most companies that succeed instead exit the market by merging with an existing firm. And for a variety of reasons, innovative startups are especially likely to be acquired by the dominant firm in the market, particularly when they are venture funded. In this Article, we argue that this focus on exit, particularly exit by acquisition, is pathological. It leads to concentration in the tech industry, reinforcing the power of dominant firms. It short-circuits the development of truly disruptive new technologies that have historically displaced incumbents in innovative industries. And because incumbents often buy startups only to shut them down, intentionally or not, it means that the public loses access to many of the most promising new technologies Silicon Valley develops. There has to be a better way. We suggest a number of ways to break the cycle of acquisition by incumbents, including changing the incentives that favor acquisition over continued operation, finding other ways to fund startups or to allow venture capital firms to cash out without an acquisition, and changing the antitrust laws to focus on who is acquiring startups. These solutions won't fix the problem of today's entrenched tech monopolies. But they will allow the next generation of companies that might displace the tech giants to make it to market. [ABSTRACT FROM AUTHOR]

The Federal Circuit is ignoring a significant share of the words of patent claims. That's a bad idea as a matter of policy. It's virtually impossible to tell when the court is going to do it. And it's inconsistent with the idea that the claims define the scope of the invention and with how the Supreme Court thinks about claim construction and its closest analogies--statutory interpretation and construing contracts. The culprit is a labyrinthine set of rules that the Federal Circuit uses to decide whether or not to include the "preamble" to a patent claim as part of the claim. The words of the preamble, which can sometimes amount to more than half of the whole claim, might or might not be treated as part of the invention depending on a complex of factors, including whether the claim reads as a complete sentence without it; whether the same words are used in both the preamble and the body of the claim; whether the body of the claim includes the magic word "said"; whether the preamble merely posits a use, benefit, or environment for the claim; and whether the preamble "breathes life and meaning into the claim." These preamble rules serve no useful purpose. If and when the Supreme Court faces the issue, it should and will sweep the rule away. Patent applicants should draft patents with that fact in mind, and the rest of us should interpret claims with one eye on the fact that this is a doctrine whose days are numbered. [ABSTRACT FROM AUTHOR]

The article discusess whether lawsuits filed by non-practicing entities (NPEs) are efficient in the U.S. Topics discussed icnlude laws governing patents in the country; patent eligibility of the innovations; and an account of Patent Clause of the U.S. Constitution. It also mentions about licensing or litigating patents rights of the modern non-practicing entity.

The article focuses on the often-confusing rules under the 1952 Patent Act that determine what an inventor must show and when an invention is ready for patenting. It mentions that demonstrate that the regime we have created favors those who patent before building and testing a prototype. It also mentions that patent rules within the America Invents Act (AIA) and provide solutions designed to encourage inventors to implement and test their ideas before patenting them.

The five major U.S. intellectual property ("IP") regimes--trademark, trade secrecy, copyright, design patent, and utility patent ("patent") laws--have quite different rules about the availability of disgorgement of infringer profits as a remedy. Traditional principles of restitution and unjust enrichment support awards of disgorgement of profits insofar as they are (1) levied against conscious wrongdoers, (2) attributable to the wrongful conduct, and (3) subject to equitable discretion. Unlike awards of actual damages, which aim primarily to compensate plaintiffs for harms suffered because of a defendant's wrongdoing, disgorgement awards primarily seek to deter wrongdoing by ensuring that wrongdoers do not profit thereby. This Article presents a formal model that supports our judgment that these principles are consistent with the goal of optimal deterrence of IP infringement. This Article presents a close study of the doctrinal structure of the five IP regimes' approach to disgorgement. We find that trademark law is the most consistent of the five regimes with traditional restitutionary principles and the goal of optimal deterrence. Trade secrecy law, like trademark law, is substantially consistent. Design patent, copyright, and patent laws deviate in more significant ways. Disgorgement awards are always available to owners of copyrights or design patents, even against innocent infringers. Moreover, design patent law even deviates from traditional approaches to restricting awards to amounts attributable to infringement. Instead, design patent law requires awards of total profits on the manufacture or sale of whatever "article of manufacture" to which an infringing design has been applied. Further, courts have rarely recognized that disgorgement awards should be subject to equitable adjustments in copyright and design patent cases, although this may change after the Supreme Court's characterization of disgorgement as an equitable remedy for copyright infringement. Patent law deviates from traditional restitutionary principles in a very different way: courts have ruled that Congress repealed disgorgement as a general remedy for patent infringement in 1946, but patent law's reasonable royalty awards can, in effect, result in a partial disgorgement of infringer profits. This Article concludes by making recommendations about how courts can, within the statutory bounds of each IP regime, render disgorgement awards that are more consistent with traditional restitutionary principles in a manner that will promote the overall goals of the IP laws. [ABSTRACT FROM AUTHOR]

In Oracle America, Inc. v. Google LLC, the Federal Circuit undermined copyright law's deference to patent law and, in doing so, delivered a blow to both regimes. Copyright's deference to patent law--including a historic refusal to enforce rights that might undermine the public's liberty to copy unpatented inventions--is a necessary part of preserving inventors' willingness to accept the short duration, mandatory disclosure, and other stringent bargains patent law demands. Deference to patent law is also integral to copyright law's interior architecture; copyright's refusal to monopolize functional applications of creative work lowers the social costs that would otherwise be imposed by copyright's ease of acquisition and long duration. If patent law refuses to protect a functional device or other innovation (perhaps because its patent has expired or because the innovation would be obvious to anyone skilled in the field), various copyright doctrines make it difficult for an eager claimant to use copyright law instead. These doctrines act like fences. For example, under 17 U.S.C. § 102(b), copyright cannot extend to "ideas" or to any "procedure, process, system, [or] method of operation." This prohibition applies "regardless" of the copyrighted "form" in which the idea, procedure, process, or method appears. Therefore, the public violates no copyright duties when it copies, say, ideas about how to improve the manufacture of steel from a copyrighted instruction manual or video. If the creator of the manufacturing idea wants protection for it, the inventor needs to look to patent law. Similarly, although copyright can subsist in drawings of a useful article, 17 U.S.C. § 113(b) and the case law disable those copyrights from giving any rights to keep others from making or selling the article. Say the inventors of an automobile engine with improved fuel efficiency want to restrain others from building and selling copycat engines. To restrain such functional copying, the inventors get no mileage out of the copyrights that subsist in their blueprints. Rather, to stop competitors from building and selling the new engine, the inventors must seek the protection of patent law. Under yet another statutory rule, 17 U.S.C. § 101, sculptured shapes that have "an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information" are not copyrightable unless their aesthetic and functional components are separable. The instant Article discusses these and other limits on copyright law. Their overall impact is to emphasize the importance Congress and the courts give to preventing copyright law from directly or indirectly competing with patent law, or undermining the choices Congress embedded in the patent statute. Computer-program copyrights were intended to protect a programmer's expression, not their engineering ingenuity. As technology poses new challenges, separate intellectual property laws need to keep congruent with the separate purposes each serves. The Supreme Court has granted certiorari in Oracle, allowing the Court to evaluate a judicial opinion that this Article argues ignored these first principles. A need for congruence (or "fit") is recognized in most areas of civil liability. For example, in enforcing the Clayton Act, the Supreme Court honored the need for congruence by creating a doctrine it called "antitrust injury" to limit liability. The common law of torts generally employs the doctrine called "proximate cause" to similarly assure fit between the facts of a given case and the law's purposes. In copyright law, the courts and Congress entrust this familiar but crucial task to "fair use." The instant Article employs analogies from antitrust and the common law of torts to reinforce the appropriateness of using the fair use doctrine to keep copyright law in its own yard. [ABSTRACT FROM AUTHOR]

The article focuses on intellectual property (IP) harms as degrading essential structure and relations and explores how everyday creators and innovators. It mentions role of law and its systems and structures, and the sociopolitical and economic organizations it makes possible to promote fundamental values. It also mentions book "Against Progress: Intellectual Property and Fundamental Values in the Internet Age" on rise of digital technology and the ubiquity of the internet.

This Article explores the practical consequences of an important shift that has recently taken place in patent theory. Although it was long agreed that the purpose of granting patents is to reward invention, today many scholars instead attempt to justify the patent system based on its role in facilitating information exchange and enabling technical coordination among firms. This change in justification is controversial, and its viability remains a fiercely contested question. But despite intense attention at the level of theory, little has been said about the consequences of this debate for patent policy itself. This Article addresses that void, developing a set of mid-level principles from coordination theory and showing how these principles affect a wide range of policy questions. This analysis has a number of implications. For example, it has long been thought that the coordination function requires granting broader patent rights and doing so at an earlier point in time than the traditional rewards function. Based on this assumption, many scholars have concluded that a coordinationfocused system would inevitably be more expensive than a rewards-focused one. But upon closer examination, the coordination function could potentially flourish with just the opposite policies--narrower patents granted later in time--and so might actually be cheaper to implement. This illustrates the importance of bringing coordination theory down to details. In many ways, current patent law reflects the long-assumed constraints of rewards theory; a move towards coordination goals opens a number of degrees of policymaking freedom that have not been previously recognized. Moreover, coordination theory can sometimes inform patent policymaking in cases where the conventional rewards theory proves ambiguous, and so merits further exploration regardless of whether coordination is ultimately accepted as a principal justification for the patent system. [ABSTRACT FROM AUTHOR]

An essay is presented which explores the structural and doctrinal features of trademark and right-of-publicity law with the unjust enrichment model. It mentions that trademark bullying are untenable with the permissive standards for infringement and dilution and the notice failures in the normative, doctrinal, and enforcement-related features of trademark and right-of-publicity law. It also mentions that features of trademark law in light of the substantive ambiguities.

Notice is important in intellectual property law, but notice works differently in trademark law than in copyright and patent. Trademark law is not based on a property theory and the rights it creates are not property rights in the usual sense. As a result, the costs of notice failure are not necessarily as high in trademark as in patent and copyright, and solutions to notice problems take a somewhat different form. This Article examines notice problems in trademark law, identifies their source, evaluates their costs, and explores ways to remedy them. The principal notice deficiency has to do with uncertainty in determining the scope of trademark rights (rather than the existence or boundaries of protected subject matter), and the main source of the problem is the vague likelihood-of-confusion test for liability, which produces high litigation costs and risks. These costs and risks can chill the descriptive and expressive use of marks, the use of marks in resale markets, and the use of trade dress to compete in product markets. The seriousness of these chilling effects, however, depends on the user and the type of use. After linking notice failure to chilling effects, the Article then explores possible ways to reduce the chilling effect problem. In this regard, an important distinction must be drawn between uses that implicate rights and uses that are valued only for efficiency reasons. Categorical exclusions work well for the former but not very well for the latter (except perhaps for productdesign trade dress). For cases involving non-expressive descriptive and nominative uses and resale uses, trademark owners should be required to plead (and prove) sufficient facts to support the existence of actual source or sponsorship confusion (not just a likelihood) and a significant risk of serious trademark-related harm, and judges should review preliminary injunction motions strictly. These reforms should go far toward reducing chilling effects while still allowing trademark relief in those exceptional cases involving serious confusion-related harm. [ABSTRACT FROM AUTHOR]

The article discusses college and university color schemes and trademark protection as of January 2012, focusing on U.S. trademark law protections in merchandising cases, as well as the implications of granting protection to the unregistered color schemes. The U.S. Lanham Act of 1946's governance of trademarks is examined in relation to infringement and unregistered marks. The landmark trademark case Boston Professional Hockey Ass 'n v. Dallas Cap & Emblem Manufacturing is also mentioned.