Table of Contents

The Extraterritorial Enforcement of Patent Rights

Marketa Trimble, University of Nevada, Las Vegas, William S. Boyd School of Law

Trade Mark Use Explained: Insights of the General Court in 'BUD'

Stavroula Karapapa, University of Reading, Centre for Commercial Law and Financial Regulation

Should All Drugs Be Patentable?: A Comparative Perspective

Cynthia M. Ho, Loyola University of Chicago School of Law

Intellectual Property Law Hybridization

Clark D. Asay, Brigham Young University - J. Reuben Clark Law School

Copyright and the Digital Economy: Is It Necessary to Adopt Fair Use?

Susanna Monseau, College of New Jersey


Editorial Notes

ERPN is sponsored by the Ewing Marion Kauffman Foundation http://www.kauffman.org/research and provides an online community for entrepreneurship research from all academic disciplines and the users of that information. SSRN is very pleased to work with the Kauffman Foundation in this important and growing area of scholarship.


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"The Extraterritorial Enforcement of Patent Rights" Free Download
PATENT ENFORCEMENT WORLDWIDE (Christopher Heath ed., Hart Publishing, in 2015, Forthcoming)

MARKETA TRIMBLE, University of Nevada, Las Vegas, William S. Boyd School of Law
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The chapter discusses the means that patent owners employ to achieve their enforcement goals in terms of the enforcement’s territorial impact; the means include centralization of litigation of multiple-country patents in a single court, litigating foreign patents in particular jurisdictions where the best prospects of actual enforcement exist, and stretching a protecting country’s patent law through the extraterritorial effects of the law and its application.

"Trade Mark Use Explained: Insights of the General Court in 'BUD'" Free Download
European Journal of Risk Regulation, Vol. 1, 2014, pp. 111-114

STAVROULA KARAPAPA, University of Reading, Centre for Commercial Law and Financial Regulation
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The General Court has dismissed the actions brought Budějovický Budvar against the registration of the Community trademark "BUD" for beer that was sought for by Anheuser-Busch. The main reason is the insignificant use in France and Austria of the appellation of origin "Bud".

"Should All Drugs Be Patentable?: A Comparative Perspective" Free Download
Vanderbilt Journal of Entertainment & Technology Law, Vol. 17, 2015

CYNTHIA M. HO, Loyola University of Chicago School of Law
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Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical time. Many have noted that the industry is in a crisis because, despite exponentially increasing expenditures, the number of new drugs produced has been stagnant. Moreover, a predominant number of the slim pipeline features drugs that are not highly innovative. At the same time, the industry and some academics are seeking to increase protection of drugs in the United States and beyond, which could further exacerbate existing problems.

"Intellectual Property Law Hybridization" Free Download
University of Colorado Law Review, Forthcoming

CLARK D. ASAY, Brigham Young University - J. Reuben Clark Law School
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Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.

In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities.

Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally.

"Copyright and the Digital Economy: Is It Necessary to Adopt Fair Use?" Free Download

SUSANNA MONSEAU, College of New Jersey
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This paper reviews recent recommendations for and against the introduction of an open-ended fair use exception for the digital age in the EU, the UK, Ireland and Australia. Law Commissions in Ireland and Australia both recommended introducing an open-ended fair use exception, as well or instead of the list of limited fair dealing exceptions, while reviews of the law in the UK and EU have not recommended such sweeping changes. The paper argues that while the “fair use? exception has many advantages for the digital age, a major legislative overhaul of copyright law is unnecessary to adapt a copyright regime to the digital realm. Balancing technological innovation and content creation depends less on the distinctions between the fair use and fair dealing exemptions and more on ensuring that the law, through both legislation and judicial interpretation, in fact acts to promote the main purpose of copyright law, the benefit of the public. This can be achieved through a focus on fairness and the harmonization of exceptions to be found in the Berne three step test.

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