Table of Contents

Harmonization: Top down, Bottom up — And Now Sideways? The Impact of the IP Provisions of Megaregional Agreements on Third Party States

Rochelle Cooper Dreyfuss, New York University - School of Law

3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law?

Geertrui Van Overwalle, KU Leuven - Centre for IT & IP Law (CiTiP)
Reinout Leys, LL.M, Independent

The Need for Suitability and Appropriateness in Crowdfunding Regulation

Maria Lucia Passador, Bocconi University - Department of Law

A Meditation on Intangibility: The Input Value Problem of Patent Valuation

Brian Burke, American University, Washington College of Law, Students

Editorial Notes

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"Harmonization: Top down, Bottom up — And Now Sideways? The Impact of the IP Provisions of Megaregional Agreements on Third Party States" Free Download
Megaregulation Contested: Global Economic Ordering After TPP (Benedict Kingsbury, et al., eds., Oxford University Press, Forthcoming)
NYU School of Law, Public Law Research Paper No. 17-21
NYU Law and Economics Research Paper No. 17-17

ROCHELLE COOPER DREYFUSS, New York University - School of Law

This chapter of Megaregulation Contested: Global Economic Ordering After TPP (Benedict Kingsbury, Richard Stewart, Paul Mertenskötter, and Thomas Streinz eds.) examines the impulse to include intellectual property within the scope of a megaregional trade agreement that is largely devoted to the promotion of a particular vision of economic ordering and to the adoption of a regional framework supportive of competition, investment and regulatory coherence. Using the TPP as an example, it argues that megaregional intellectual property agreements not only lead to changes in the law within member states, but can also have strong effects outside those states. The innovation sector within the region’s trading partners must adapt to the new regime of it wishes to continue to trade in the region. That can alter the intellectual property politics in these other countries. Furthermore, members of the epistemic community within the new regime influence those outside it. Finally, the law of the megaregion has an impact on the ability of the member states to negotiate future agreements with third countries and can also affect the way that existing agreements are interpreted. The last section of the chapter discusses the normative implications of megaregional spillover effects on third countries. While a megaregional exposes countries that had no role in the negotiation process to a changed legal landscape, it also creates a new way to harmonize intellectual property law, what I call “sideways? harmonization. Third countries can join at their own pace and in a manner that responsive to their own creative sectors. These agreements also offer an opportunity to experiment with transnational trade rules, such as rules on in transit seizure, parallel importation, and cross-border enforcement.

"3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law?" Free Download
International Review of Intellectual Property and Competition Law (IIC), Forthcoming

GEERTRUI VAN OVERWALLE, KU Leuven - Centre for IT & IP Law (CiTiP)
REINOUT LEYS, LL.M, Independent

Concerns have been raised that the upsurge of 3D printing technology would disrupt the patent system. The central question the present paper aims to address is whether and to what extent the emergence of 3D printing technology indeed urges us to rethink patent law. The paper splits up this question by looking at two facets in more depth – patentability and infringement – through the lens of pertinent European and US law. In order to provide a better understanding on the reach of patentability and infringement theory and practice and their possible interpretation in a 3D printing context, a set of different scenarios is established covering the perspectives from rights holders (inventors/producers) and users (hobbyists/consumers).

The paper concludes that the wide uptake of 3D printing does not fundamentally challenge the premises of patent law. 3D printing does not upset patentability theory in general: it does not challenge prevailing concepts of patentable subject matter, nor current patentability requirements. However, digitized fabrication challenges the type/token dichotomy on which patent ontology is founded. 3D printing does not boulverse infringement theory either: it does not fundamentally alter the scope of rights, concepts or direct/indirect infringement assessment traditions. However, the emergence of 3D printing and the decentralization of production it entails, may lead to a wider and more dispersed scale of infringement, putting into question the adequacy of current enforcement tools and strategies. A lack of adequate enforcement tools might well undermine the innovation incentive rationale dominating current patent law.

"The Need for Suitability and Appropriateness in Crowdfunding Regulation" Free Download
Revue internationale des services financiers/International Journal for Financial Services, February 2017

MARIA LUCIA PASSADOR, Bocconi University - Department of Law

Fueled by the rapid development of innovative offerings designed to meet the needs of financial institutions, the FinTech sector witnessed a sharp increase over the past few years, thus requiring a constant update of financial regulation to keep pace with the evolution of the 21st century markets. In this context, raising arm’s length finance from dispersed investors thanks to crowdfunding undeniably represented one of the first and foremost complementary sources of funds for new companies which are preferred to traditional ones. In order to pursue their goals, thanks to the relevant technological improvement, funders are allowed to raise money in return for equity shares, interests, products, services, or even for the sake of donation.

After sketching the major points of crowdfunding regulations – focusing primarily on the pioneering, Italian system – and after considering the rules of conduct in the field of investment services both in theory and in practice, the present piece will explore how the rules of suitability and appropriateness combine with financial regulation 2.0 and, specifically, with crowdfunding. The aim of the study is to support the conclusion that (i) crowdfunding deserves attention in light of the growing importance it assumed at the international level and in light of the Markets in Financial Instruments Directive evolution in the field of investment services; (ii) although harmonization might seem bold in the current scenario, especially in light of the Report on Crowdfunding in the EU Capital Market Union, it would represent a valuable aim to be pursued by the legislator.

"A Meditation on Intangibility: The Input Value Problem of Patent Valuation" Free Download

BRIAN BURKE, American University, Washington College of Law, Students

Time is money and money is time, but what is the value of your time? What is the value of a lawful monopoly for twenty years? Over the last several decades, scholars have proposed multifarious theoretical frameworks for patent valuation, but no accepted empirical law has emerged. Further, each proposed patent valuation method has at least one major drawback related to an input value problem.

The input value problem is uncertainty or inaccuracy of a given input value used in a patent valuation method. Uncertainty or inaccuracy is either inherent in the method or arises from subjective bias or lack of information of the inputs. Different methods of valuation are used in different contexts, but no method has recognized or proposed solutions to the input value problem.

This Comment identifies how the input value problem distorts each of the currently accepted valuation methods. Using experimental data and proposed heuristics, the study then conducts an empirical analysis to develop an empirical formula that addresses the input value problem. The proposed method solves the input value problem by incorporating a market-based weighted median of patent assignments, time-dependent patent costs, qualitative validity and claim analysis, and objective patent value indicators. This Comment adds to the patent valuation literature, and informs scholars and practitioners of a novel method to facilitate better negotiations, investments, and litigation.


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