Latest Issue: Volume 17, Issue 1

SCULPTURE, INDUSTRIAL DESIGN, ARCHITECTURE, AND THE RIGHT TO CONTROL USES OF PUBLICLY DISPLAYED WORKS

By: Chused, Richard | November 7, 2019

This article explores the anomalous ways in which copyright owners may control use of works they publicly display. Treatment of rights associated with publicly displayed sculpture and architecture are dramatically different. The copyright statute deprives owners of copyrights in constructed buildings of the ability to police the ways in which imagery or other uses of the publicly visible structure may be exploited by others. This article focuses on three related but different settings involving the public display of (1) a work of graffiti, (2) a large-scale sculpture, and (3) a building with sculptural features. Through an analysis of the differences in their treatment, this article investigates problems in extant law and suggests potential resolutions of the issues.

THE ITC IS HERE TO STAY: A DEFENSE OF THE INTERNATIONAL TRADE COMMISSION’S ROLE IN PATENT LAW

By: Sun, Linda | November 7, 2019

The International Trade Commission (ITC) is a quasi-judicial federal agency that is responsible for investigating unfair trade practices. Although the ITC is widely believed to be an expert court in patent law, it is often criticized for its role in the field. This paper advances a novel analysis of the overlooked contributions of the ITC to the development and enforcement of patent law. By exploring the background of the ITC, the procedural advantages it offers, and the ways it substantively enriches patent law doctrine, this article concludes that the ITC is an important player in patent law.

PATENTLY UNCERTAIN

By: Cahoy, Daniel R. | November 7, 2019

Innovation is an inherently uncertain process. Success is typically coupled with risk and we can only hope that those with great ideas will persevere. To encourage innovation, society reduces some of the innovation risk through structures like funding systems, regulation, and of course intellectual property rights. But what happens when uncertainty strikes the legal protection devices themselves? Faced with unclear rules and increasingly speculative rewards, some innovators may simply stop playing the game. Such uncertainty has recently been a topic of great concern in the U.S. patent system. Some believe that the suddenly unknowable nature of fundamental questions like what is patentable has had the effect of dramatically undermining legal incentives. Others question whether a crisis really exists. They point out that uncertainty can have positive effects, and even, be a source of strategic advantage. How can we tell good uncertainty from bad? This article provides a novel framework for evaluating patent uncertainty that explains how complaints and complacency can exist contemporaneously. It draws on the behavioral economics literature to provide a deeper understanding of how innovators react to unknown legal environments. Based on this analysis, the article identifies three different types of legal uncertainty: (1) investment-killing; (2) if-then; and (3) remedial uncertainly. It asserts that only the first creates a problem that must be addressed by legal reform, while the others are actually essential to a healthy innovation system. The article concludes with specific prescriptions for addressing negative uncertainty that depend on both firm and policymaker action.

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