Thirty-Two Short Stories About Intellectual Property

In the United States, intellectual property law is usually viewed as serving an economic policy by providing an incentive for authors and inventors to create works.  The incentive policy, however, ill fits the actual contours of intellectual property law and how artists and inventors use it.  However, intellectual property can serve human rights (similar to the moral rights approach in some jurisdictions) by allowing people to control the way that their works are publicly exploited and by allowing groups (such as indigenous peoples) to implement rights of self-determination, education, and media.  In assessing doctrine and theory, deductive reasoning from economic or legal principles is no more important than literary tools, like interpretation and narrative.  These points can best be illustrated by the following stories.

by Lorie Graham* and Stephen McJohn**

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Analyzing the Non-Competition Covenant as a Category of Intellectual Property Regulation

The employee non-competition covenant is a category of intellectual property regulation, but it is rarely recognized as such. This essay proposes a new critique of the employee non-competition covenant: When we examine such covenants as a category of intellectual property regulation, they do not meet the criteria that commonly justify intellectual property laws.  Restrictive covenants are not narrowly tailored to protect only new, creative information, they provide no incentives for innovation beyond those already found in trade secret law, and they provide little balance between the needs of individual, innovative employees and the interests of their more powerful employers.

by Charles Tait Graves*

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Limits on Hard-to-Reproduce Inventions: Process Elements and Biotechnology’s Compliance with the Enablement Requirement

Reproducibility is the touchstone of the scientific method and one of the strongest norms of the research community.  In order to be accepted as scientific fact, results of an experiment must be reproducible by an independent operator following the description given by the original inventor.  This Article maintains that the enablement requirement of § 112 ¶ 1, as informed by the reproducibility norm, calls for narrower claims to some inventions in the biotechnological arts.  In particular, this Article makes the case for more frequent use of process limitations in composition-of-matter claims to biological and biochemical inventions.

by Dmitry Karshtedt, Ph.D.*


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An Accurate Diagnosis, But Is There A Cure?: An Appreciation of The Role of Science in Law by Robin Feldman

Professor Feldman has provided an accurate and unsettling diagnosis of the law’s misuse of science.  Her central thesis is that the law defers to science far too much either by cloaking legal criteria in scientific terms, thus avoiding hard and indeed intractable problems, or by deferring to scientific experts essentially to decide difficult cases. Diagnosis is often a royal road to cure, but sometimes the patient is incurably ill with the disease the diagnosis accurately identifies.  I fear that the legal patient in this case is incurably, but let us hope not terminally, ill.

by Stephen J. Morse*

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Subverting New Media for Profit: How Online Social Media “Black Markets” Violate Section 5 of the Federal Trade Commission Act

“Black markets” in social media votes and actions have in no way reached critical mass.  The number of sponsored “tweets,” “diggs,” and “favorites” on any given day no doubt represents a miniscule portion of the vast, burgeoning sea of authentic social media messages that traverse the globe.  Nonetheless, enterprises like Subvert and Profit should give us pause.  In this Note I argue  the FTC is uniquely positioned to combat the problem. Given the substantial public interest in user trust in the social media context as well as the growing role played by social media in shaping consumer market decisions, the FTC would do well to fulfill its broad statutory mandate to protect the public from deceptive trade practices by investigating and—if and when it is deemed necessary—regulating “black markets” in social media votes and actions.

[1]by Peter Touschner*

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‘Locked-In’ to Their Decisions: Investigating How the States Govern Revocation of Advance Directives and How Three States Make Revocation Impossible for People with Locked-In Syndrome

The statutes governing revocation of advance directives in Colorado, Maryland, and Tennessee discriminate against locked-in patients and must be changed.  If those statutes are not changed, a person with locked-in syndrome in one of those states may not be able to legally revoke her advance directive, even if the directive ordered removal of life support.  While locked-in syndrome is a rare condition, advances in medical science are promising to make its diagnosis somewhat less uncommon in the future.  Coupled with developments in technology that aid in communication with people who have lost the ability to speak, write, or communicate by any traditional method, the more accurate diagnostic procedures bring to light a class of people who can and should be making important health care decisions, but are now hindered only by the law.  Colorado, Maryland, and Tennessee should change their laws governing revocation of advance directives before the scenarios described in this paper become a real life-or-death situation for a real person.

by Peter C. Harman*

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A Pathway to Follow-On Biologics

Biologics are rapidly growing in importance in the medical world.  The ability of biopharmaceutical drugs to replace natural proteins produced by the body make them invaluable as therapy regimens to target major disease including cancer, infectious agents, and a variety of other health conditions  Consideration of the current drug approval system (the Hatch-Waxman Act) and the available options for a regulatory pathway for generic biologics (Waxman’s and Eshoo’s Bills) reveals that the bills currently pending before Congress still need revision.  Specifically, considering the importance of biologics as a growing field of medicine that treats many medical ailments, Congress should ensure an abbreviated approval process for follow-on biologics.  An abbreviated process with a mandatory one year clinical testing period that requires a follow-on biologic to be the same as its reference biologic would be the best option to address the issues currently facing biologics.

by Jeanne Yang*

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