Prof. Michael Risch on “Paths or Fences”

Professor Michael Risch, of Villanova (congrats Wildcats, BTW!), has a review of “Paths or Fences: Patents, Copyrights, and the Constitution” up at Written Description. “Well-reasoned” is about the nicest thing one can possibly say about an article, and the rest of the review is similarly generous, thoughtful, and thought-provoking. Prof. Risch is also a frequent […]

Paths or Fences: Patents, Copyrights, and the Constitution

I have a draft article up on SSRN, titled “Paths or Fences: Patents, Copyrights, and the Constitution” (forthcoming Iowa Law Review). Here’s the abstract: Congressional power over patents and copyrights flows from the same constitutional source, and the doctrines have similar missions. Yet the Supreme Court has approached these areas from distinctly different angles. With […]

Is Copyright’s Muddled “Conceptual Separability” Doctrine Coming to Patent Law?

In Samsung Electronics Co. v. Apple Inc., 137 S. Ct. 429 (2016), the Supreme Court held that damages for infringement of a design patent could properly be awarded even even where the patent covered only an individual component of the product as sold to to consumers rather than the design of the product as a […]

Gene Patents, Oil-Eating Bacteria, and the Common Law

The Supreme Court issued its decision in Association for Molecular Pathology v. Myriad Genetics today. A unanimous Court (with a short, quirky concurrence from Justice Scalia) held that the patent claims directed to isolated, purified DNA sequences did not recite patentable subject matter under 35 U.S.C. 101; by contrast, those directed to complementary DNA (DNA […]

Patenting Nature

The Supreme Court has granted cert in Association of Molecular Pathology v. Myriad Genetics, a decision that seemed inevitable from the moment the Federal Circuit issued its fractured, confused set of opinions upholding the breast cancer gene patents. The case represents another foray by the Supreme Court into patentable subject matter, on the heels of […]

What Do Commons Have In Common?

Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse. I thought I’d start with a riddle: what do roller derby, windsurfing, SourceForge, and GalaxyZoo have in common? Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate […]

The Emerging “IP is All About Jobs” Meme

In a time when unemployment seems to be stuck above nine percent, it’s not surprising that the debate over practically every public policy proposal seems to begin with the question, how will it affect jobs? Sometimes, as with government stimulus spending, the question makes sense: if we inject $X into the economy, Y jobs will […]

Protecting Hackers from Lawyers

Oliver Day and I presented the idea behind our article The Hacker’s Aegis (now available from Emory Law Journal – the cite, for law nerds, is 60 Emory L.J. 1051 (2011)) at the Berkman Center for Internet & Society at Harvard Law School yesterday. The Webcast of the talk should be available soon. We had […]

Copyright’s Constituencies

Teaching Civil Procedure and Copyright together again during the just concluded semester, which I have not done since 2007, made for a study in contrasts. As we teach it at Cincinnati, the second semester Civ Pro course is an in-depth examination of some of the trickiest and most important provisions to be found in the […]

Bilski: What Now?

The Supreme Court has finally (finally!) issued its opinion in In Re Bilski. The short version: business method patents are OK, but not Bilski’s; the “machine or transformation” test pushed by the Federal Circuit is helpful, but not exclusive, in determining patentability; and piecing together the “majority” opinion is like solving Rubik’s cube. I think […]