Vaccine Licensure in the Public Interest: Lessons from the Development of the U.S. Army Zika Vaccine
This Essay analyzes the recent attempted exclusive licensing deal for a Zika vaccine, which would have hampered the drug’s affordability and availability. Revising the Patent Act to increase transparency and accountability in the licensing process would ultimately result in more affordable vaccines …
Copyright law’s experiment with transformative use is failing. So argue a growing number of scholars who contend that the standard conflicts with the goals of art. In their view, transformative use goes astray by conflating the accused work’s meaning with the defendan…
The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The dispara…
Parties may challenge the validity of issued patents in federal courts and before the Patent and Trademark Office (PTO) and its administrative tribunal, the Patent Trial and Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdict…
Why is Sony/ATV Music Publishing, the world’s largest music publisher,1 unhappy about its massive hit single “Happy”?2 According to CEO and Chairman Martin Bandier, the answer comes down to the math behind digital streaming revenues. In the first three months of 2014, the Internet ra…
The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…
Introduction “Claim construction” is the process by which a court determines the meaning of a patent’s claims—a process that in turn determines the scope of the covered invention. This process is extremely important because a court must determine what the patent covers before it ca…
A recent Ninth Circuit case, Garcia v. Google, held that an actor can maintain a copyright interest in her acting performance in a film—independent of the copyright held by the filmmaker—and that this copyright can sometimes be sufficiently powerful to allow the actor to prevent public di…
Introduction Here we go again. In late February 2014 a group of congresspersons introduced a bill—The American Royalties Too Act of 2014 (known for its catchy abbreviation: the ART Act),1 which, if passed, will grant visual artists2 a right to collect royalties when their artworks are r…
122 Yale L.J. 1900 (2013).
In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensi…
122 Yale L.J. 837 (2012).
122 Yale L.J. 218 (2012).
The Visual Artists Rights Act of 1990 (VARA) controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are frequently criticized as …
**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.**
In Patent Inflation, I argued that the asymmetry in Federal Cir…
**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.**
Professor Jonathan Masur’s recent article, Patent Inflation, argue…
**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.**
Jonathan Masur’s argument regarding “Patent Inflation” rests on the a…
121 Yale L.J. 470 (2011).
For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular fail…
120 Yale L.J. 1590 (2011).
In Graham v. John Deere Co., the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that th…
120 Yale L.J. 2 (2010).
A half-century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, …
119 Yale L.J. 1727 (2010).
The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months. The dispute arises from the interpretation of 35 U.S.C. § 112, which states in …
119 Yale L.J. 384 (2009).
It is commonly asserted that innovation markets suffer from excessive intellectual property protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertion. Under the agnostic assumption that we cannot assess directly whether …
118 Yale L.J. 1126 (2009).
BY NEIL WEINSTOCK NETANEL
NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2008, PP.ix, 274. $34.95.
The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright
118 Yale L.J. 186 (2008).
The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…
It is a distinct pleasure to have the chance to respond to the insightful commentaries of Peter Drahos, Ruth Okediji, and Tomiko Brown-Nagin. I find much to agree with in each, but I will focus on a few areas of divergence in the hope of clarifying our differences. Drahos’s work on the role of id…
117 Yale L.J. 804 (2008).
Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have…
117 Yale L.J. 642 (2008).
Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts i…
This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…
116 Yale L.J. 1472 (2007)
The Wealth of Networks: How Social Production Transforms Markets and Freedom
BY YOCHAI BENKLER
NEW HAVEN: YALE UNIVERSITY PRESS, 2006. PP. 528. $40.00
116 Yale L.J. 882 (2007)
Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non)…
114 Yale L.J. 661 (2004)
This Note applies the concept of paradigm shifts from the history and philosophy of science to describe how patents on biomedical research tools--inputs to basic research--can help advance scientific theory. Patents on research tools frustrate scientific norms of sharing and …
114 Yale L.J. 535 (2004)
Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…
Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production
114 Yale L.J. 273 (2004)
This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…
113 Yale L.J. 261 (2003)
The experimental use doctrine in patent law protects alleged infringers who use patented inventions solely for experimental purposes, such as testing whether a device functions as claimed or re-creating a process to observe its effects from a scientific perspective. The judi…
112 Yale L.J. 2331 (2003)
As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…
112 Yale L.J. 1179 (2003)
Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of i…
112 Yale L.J. 1 (2002)
In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America.
Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…
111 Yale L.J. 2251 (2002)
111 Yale L.J. 1575 (2002)
Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such info…
111 Yale L.J. 761 (2001)