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The strength of the patent system is waning. The Supreme Court recently opened the door for dramatic change by rejecting the long- standing presumption that a permanent injunction should issue upon the adjudication of a valid and infringed patent. Federal courts have since refashioned patent remedies to favor monetary liability for patent infringement, resulting in the restructuring of substantive rights for certain classes of patent holders. In particular, some patent holders have nearly lost their right to require consent prior to the use of their patented technology. This is a troubling development. If a patent holder is unable to enforce its right to exclude, there is little preventing an interested user from acting unilaterally. Simply, the interested user will take what it wants without first seeking permission from the patent holder. In this Article, I argue that patent law should look to the law of trespass to regain the strength of its property roots as well as a predict- able framework for the occasions that merit a switch from a property rule to a liability rule. Under the proposed framework, the vast majority of patent holders will reestablish their right to exclude infringers. However, in the event that a patent holder abuses its monopolistic leverage to unreasonably cause harm to the public, an incomplete privilege will extend to the infringer. This incomplete privilege will function the same way a defense of necessity does in trespass, allowing the infringer access to the patented technology without the ordinary threat of a penalty. Permitting the infringer a limited amount of time to design around the patented technology or come up with alternative technology will further innovation, as well as refocus courts on how the public is affected by the gain or loss of the patented technology. This recognition of the public's interest while still valuing a patent holder's right to exclude will reinvigorate the current patent system.
Intellectual property law faces the challenge of balancing the interests of right holders and users in the face of technological change and inequalities in information access. Concepts of Property in Intellectual Property Law offers a collection of essays which reflect on the interaction between intellectual property and broader, more traditional, notions of property. It explores the way in which differing interpretations of the concept of property can affect the scope of protection in the law of copyright, patent, trade marks and confidential information. With contributions from leading and emerging scholars from a variety of jurisdictions, the book demonstrates how concepts of property can assist in shaping a conceptually coherent and balanced response to the challenges faced by intellectual property law.
Leading voices in law, economics, and competition policy come together to inform innovation policy in wireless ecosystems.
The first of its kind, this book presents a comprehensive collection of leading patent cases from nine major Asian jurisdictions which are analyzed by eminent scholars and legal practitioners from Asia, Germany, and the United States. It contains thirty case reports covering six topics which best reflect the current trends in Asia in patent law, namely specialized IP court (or division), compulsory licensing, the intersection between patent law and competition law, injunction, damages, and choice of jurisdiction and law in cross-border patent litigation. Each case report explores a landmark case by deconstructing the legal background and the legal reasoning of the decisions, and then discussing the commercial and/or industrial ramifications. The present volume is a useful guide for practitioners, lawyers, and judges alike, a primer for students and businessmen entering the IP world, and a reminder for policymakers, both within Asia and further afield.
This book is a reflection on domestic intellectual property lawmaking from a developing country’s perspective. It focuses on Sri Lanka—a South Asian jurisdiction with a socio-economic, cultural, and political landscape similar to other developing nations in the region, but the intellectual property regime of which has been less explored. The aim of this book is to address the discrepancies, gaps, and flaws in the national intellectual property legal framework of Sri Lanka. In doing so, the book considers Sri Lanka’s obligations under TRIPS and other related intellectual property treaties to which the country is a party. The book also examines approaches adopted by developing countries in the region and beyond, as well as other more developed nations, in calibrating Sri Lanka’s domestic intellectual property regime to better address the country’s domestic needs and national interests. The approach adopted in this book is of relevance, more generally, to policymakers, legislators, legal academics, scholars, jurists, legal practitioners and judges who are keen on exploring the extent to which domestic intellectual property legislation complies with international intellectual property norms and standards and, more importantly, the extent to which domestic law makes use of the flexibilities under international law in addressing domestic needs and national interests.
The history of patent harmonization is a story of dynamic actors, whose interactions with established structures shaped the patent regime. From the inception of the trade regime to include intellectual property (IP) rights to the present, this book documents the role of different sets of actors – states, transnational business corporations, or civil society groups – and their influence on the structures – such as national and international agreements, organizations, and private entities – that have caused changes to healthcare and access to medication. Presenting the debates over patents, trade, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as it galvanized non-state and nonbusiness actors, the book highlights how an alternative framing and understanding of pharmaceutical patent rights emerged: as a public issue, instead of a trade or IP issue. The book thus offers an important analysis of the legal and political dynamics through which the contest for access to lifesaving medication has been, and will continue to be, fought. In addition to academics working in the areas of international law, development, and public health, this book will also be of interest to policy makers, state actors, and others with relevant concerns working in nongovernmental and international organizations.
This book examines how national, regional and international patent law can better respond to the interests of a diverse set of non-profit and public interest entities, and be of more benefit to developing countries. The book sets out a "tool-box" of participatory mechanisms which would foster third party participation in the patent process.
This book takes an in depth and hard look at the current status and future direction of treatment predictive markers in Personalized Medicine for the brain from the perspectives of the researchers on the cutting edge and those involved in healthcare implementation. The contents provide a comprehensive text suitable as both a pithy introduction to and a clear summary of the "science to solutions" continuum in this developing field of Personalized Medicine and Integrative Neuroscience. The science includes both measures of genes using whole genome approaches and SNIPS as well as BRAINmarkers of direct brain function such as brain imaging, biophysical changes and objective cognitive and behavioral measurements. Personalized Medicine for Brain Disorders will soon be a reality using the comprehensive quantitative and standardized approaches to genomics, BRAINmarkers and cognitive function. Each chapter provides a review of recent relevant literature; show the solutions achieved through integrative neuroscience and applications in patient care thus providing a practical guide to the reader. The timeliness of this book's content is propitious providing bottom line information to educate practicing clinicians, health care workers and researchers, and also a pathway for undergraduate and graduates interested in further their understanding of and involvement in tailored personal solutions.
In this book, leading scholars analyze the important role played by copyright exceptions in economic and cultural productivity.