• A Costly Haircut

    Lebron James and Nick Saban are well-known for dominance in their respective sports of basketball and college football. Recently they found themselves opposing each other in an intellectual property controversy. James’ Uninterrupted media company sent the University of Alabama a letter claiming Bama’s new barbershop themed show, “Shop Talk,” is infringing James’ similarly themed show, “The Shop.” The choice to send the demand letter has led to unintended, but foreseeable consequences for…

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  • WHO Director Dr Tedros Opens First Annual World Health Assembly With ‘Keys For Success’

    World Health Organization Director General Tedros Adhanom Ghebreyesus (“Dr Tedros”) in his first speech in his function at head of the World Health Assembly described three keys to reach the ambitious goals of the organisation. He envisioned a transformed WHO helped by a strong leadership team, called for political commitment for which he said most country leaders are ready, and advocated partnerships with a number of international health actors, including the private sector.

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  • Federal Circuit Affirms Dismissal of Patent Challenges Filed by Drug Consumer

    AIDS Healthcare Found., Inc. v. Gilead Scis., Inc., the Federal Circuit affirmed the dismissal of patent challenges filed by drug consumers. The Court noted that a declaratory action requires “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” The Court also dismissed AHF’s argument that it is inducing infringement and dismissed AHF’s public policy arguments for invalidating invalid…

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  • HID Global Is Hiring An Assistant Intellectual Property Counsel

    HID Global has an opening for an Assistant Intellectual Property Counsel to join its team. Reporting to the General Counsel – Intellectual Property, as Assistant Intellectual Property Counsel you will have at least 4 years of experience in a wide-range of intellectual property legal matters from which to: (i) shape and execute intellectual property strategies to support business goals using sound, practical judgment and good business sense; and (ii) counsel and educate business leaders and…

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  • Chad Davis and Kassie Helm Join Dechert’s IP Life Sciences Team

    Leading global law firm Dechert LLP announced this week that Chad E. Davis, Ph.D. and Katherine A. (“Kassie”) Helm, Ph.D. have joined its intellectual property practice in Boston and New York, respectively, as partners and also further expanding Dechert’s global life sciences capabilities. Davis utilizes his extensive scientific background in chemistry to structure strategic, complex patent portfolios – supporting clients through each phase of the patent process, from patent procurement to…

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  • SAP America, Inc. v. InvestPic, LLC (Fed. Cir. 2018)

    By Michael Borella — SAP America, Inc. (SAP) filed a declaratory judgment action in the Northern District of Texas, alleging that U.S. Patent No. 6,349,291 of InvestPic, LLC (InvestPic) was invalid under 35 U.S.C. § 101. The District Court invalidated the ‘291 patent during the pleadings stage. InvestPic appealed the ruling to the Federal Circuit. Claim 1 of the ‘291 patent recites: A method for calculating, analyzing and displaying investment data comprising the steps of: (a) selecting a sample space, wherein the sample space includes at least one investment data sample; (b) generating a distribution function using a re-sampled statistical…

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  • Conference & CLE Calendar

    May 22, 2018 – “Sovereign Immunity and Patents at the PTAB and District Courts” (McDonnell Boehnen Hulbert & Berghoff LLP) – 10:00 am to 11:15 am (CT) May 22, 2018 – “Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the F…

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  • 給電

                            目次はこちら

    給電

    (FEED)
    $$ Such large currents require cable feeds which are bulky, heavy and inherently inflexible. / そうした大きな電流は、太くて重…

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  • Barton Beebe on Bleistein

    Barton Beebe’s recent article, Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law, was already highlighted on this blog by Shyamkrishna Balganesh, but I wanted to add a few thoughts of my own because I really enjoyed reading it—it is a richly layered dive into the intellectual history of U.S. copyright law, and a wonderful piece to savor on a weekend.

    In one sense, this is an article about one case’s role in U.S. copyright law, but it uses that case to tackle a fundamental question of copyright theory: what does it mean “to promote the Progress”? Beebe’s goal is not just to correct longstanding misunderstandings of Bleistein; as I understand it, his real point is that we can and should “assess[] aesthetic progress according to the simple propositions that aesthetic labor in itself is its own reward and that the facilitation of more such labor represents progress.” He thinks Justice Holmes’s invocation of “personality” in Bleistein represents a normatively attractive “third way” between judges assessing aesthetic merit and simply leaving this judgment to the market—that aesthetic progress is shown “by the mere fact that someone was willing to make the work, either for sale or otherwise, and that in making it, someone had invested one’s personality in the work.”

    This personality-centered view of copyright seems similar to the Hegelian personality theory that was drawn into IP by Peggy Radin and elaborated by Justin Hughes, though at times it seems more like Lockean theories based on the author’s labor. I think he could have done more to explain how his theory relates to this prior literature, and also how it’s different from a utilitarian theory that recognizes the value creators get from creating (à la Jeanne Fromer’s Expressive Incentives). In any case, I think Beebe’s take is interesting, particularly with the connection he draws to John Dewey’s American pragmatist vision of aesthetic progress.

    But this article is not presented as a work on the theoretical foundations of IP—it is presented as a revisionist account of the 1903 Bleistein decision, so what work is this case doing? As I understand it, Beebe’s take on the opinion is that (1) Holmes was wrong about the IP Clause covering fine art, but we shouldn’t change that; (2) he was also wrong in concluding that “Progress” means commercial value, and we should change that; and (3) he was brilliant in investing the originality standard “with the dignity of democratic ‘personality,’” so we should revitalize that as the basis for our copyright law. I don’t think Beebe is arguing that we should adopt this personality approach because Holmes said it. And he’s certainly not saying that this is the original meaning of “Progress,” given that he thinks the IP Clause wasn’t intended to protect fine arts at all. Bleistein seems more like an interesting lens through which to express his vision of aesthetic progress.

    This isn’t to say that Bleistein is not a worthy target. On the first day of copyright in Intro to IP, I point out the famous “dangerous undertaking” quotation from Bleistein, note that it is often recited, and ask the students to keep in mind as they read the cases whether they think it is actually true that judges aren’t passing on the artistic merit of the works before them. But I’ve never thought this deeply about Bleistein before, and I’ll certainly do a better job discussing it in class after reading this article. I’ve also learned a great deal about the development of modern U.S. copyright law, and in that sense, the article is a resounding success.

    I’m less convinced by the payoffs of this personality theory for modern doctrine in Part IV. In some cases, I see how the test would be different—e.g., switching the originality inquiry to “whether the work contains its creator’s personality”—but I don’t know how that helps decide the tough cases. More fundamentally, I’m not convinced it is right that focusing on the value of the act of creation necessarily requires a shift toward access on the incentives/access balance—what if this shift, on net, causes fewer people to invest their personalities in new works? I think Beebe’s conclusion depends on the empirical assumption that shifting toward access would lead to more creation (however we’re quantifying that), and I’m not sure what he’s basing this on—the millions of people who create for free that he points to seem like they could be evidence that people who want to create find plenty of ways already.

    One final note: The article is full of tangents and takes a while to get to the point, but they are interesting tangents (and one of the real contributions of the paper), so I didn’t mind the detours. My favorite part was where Beebe teases Justice Holmes for making “a great show of his aesthetic cultivation” while making a great show of his own aesthetic cultivation (which is presumably somewhat tongue-in-cheek). These frequent asides might be frustrating for busy readers looking for a take-home point, but for a lazy Sunday afternoon, they are perfect.

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  • Respecting Foreign Judgments and $79 million for clicking “I agree”

    by Dennis Crouch

    An interesting new petition before the Supreme Court focuses on international licensing and copyright issues.  What happens when foreign courts give less weight to contracts and copyrights than would a US court? World Programming Ltd. v. SAS Institute, Supreme Court Docket No. 17-1459 (2018). [petition][docket]

    Agreeing not to Reverse Engineer, then Reverse Engineering: WPL, a UK software company purchased a copy of SAS’s popular software and began to study its functionality (all in the UK).  As part of the process, WPL clicked “I agree” on the SAS clickwrap licenses. Those licenses included a prohibition on reverse engineering and also limited the software use to “non-production purposes.”  According to the petition, however, “under U.K. and E.U. law, such observation and study is lawful, and contractual terms restricting such acts are null and void. . . .While  WPL was required to agree to that license before installing the SAS System, it also knew that E.U. and U.K. law permitted use of software for observation, study, and testing regardless of contrary contractual restrictions.” Consider Council Directive 2001/29/EEC, ¶ 50, 2001 O.J. (L 167/10) (EC); Council Directive 91/250/EEC, art.

    Continue reading Respecting Foreign Judgments and $79 million for clicking “I agree” at Patently-O.

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