Unconstitutional Incontestability? the Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co
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Union Calendar No. 481 104Th Congress, 2D Session – – – – – – – – – – – – House Report 104–879
1 Union Calendar No. 481 104th Congress, 2d Session ± ± ± ± ± ± ± ± ± ± ± ± House Report 104±879 REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES DURING THE ONE HUNDRED FOURTH CONGRESS PURSUANT TO CLAUSE 1(d) RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES JANUARY 2, 1997.ÐCommitted to the Committee of the Whole House on the State of the Union and ordered to be printed U.S. GOVERNMENT PRINTING OFFICE 36±501 WASHINGTON : 1997 COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTH CONGRESS HENRY J. HYDE, Illinois, Chairman 1 CARLOS J. MOORHEAD, California JOHN CONYERS, JR., Michigan F. JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado Wisconsin BARNEY FRANK, Massachusetts BILL MCCOLLUM, Florida CHARLES E. SCHUMER, New York GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California HOWARD COBLE, North Carolina RICH BOUCHER, Virginia LAMAR SMITH, Texas JOHN BRYANT, Texas STEVEN SCHIFF, New Mexico JACK REED, Rhode Island ELTON GALLEGLY, California JERROLD NADLER, New York CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia XAVIER BECERRA, California STEPHEN E. BUYER, Indiana JOSEÂ E. SERRANO, New York 2 MARTIN R. HOKE, Ohio ZOE LOFGREN, California SONNY BONO, California SHEILA JACKSON LEE, Texas FRED HEINEMAN, North Carolina MAXINE WATERS, California 3 ED BRYANT, Tennessee STEVE CHABOT, Ohio MICHAEL PATRICK FLANAGAN, Illinois BOB BARR, Georgia ALAN F. COFFEY, JR., General Counsel/Staff Director JULIAN EPSTEIN, Minority Staff Director 1 Henry J. Hyde, Illinois, elected to the Committee as Chairman pursuant to House Resolution 11, approved by the House January 5 (legislative day of January 4), 1995. -
GEORGE MASON UNIVERSITY SCHOOL of LAW
GEORGE MASON UNIVERSITY SCHOOL of LAW CROPS, GUNS & COMMERCE: A GAME THEORETICAL CRITIQUE OF GONZALES V. RAICH Maxwell L. Stearns 05-21 LAW AND ECONOMICS WORKING PAPER SERIES An electronic version of this paper can be downloaded from the following websites: Social Science Research Network: http://ssrn.com/abstract_id= 787304 BePress Legal Repository: http://law.bepress.com/gmulwps/gmule/art37 Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich Maxwell L. Stearns∗ Abstract In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion entirely on his own farm, and Lopez v. United States, the controversial 1995 decision, which stuck down the Gun- Free School Zones Act and for the first time in over sixty years imposed limits on the scope of Congress’s Commerce Clause power based upon the underlying subject matter of the regulated activity. Writing for the Lopez majority, Chief Justice Rehnquist had claimed not to disturb the expansive post-New Deal Commerce Clause precedents, but rather to fit all of the cases neatly into three circumscribed categories: the use of channels of interstate commerce; instrumentalities or persons or things traveling in interstate commerce; and economic activities that have a substantial effect on interstate commerce. -
Uncertainty and the Standard of Patentability Robert P
ARTICLE UNCERTAINTY AND THE STANDARD OF PATENTABILITY ROBERT P. MERGES" Table of Contents I. INTRODU CTION ................................................................................ 2 II. THE LEGAL STANDARD .................................................................. 4 A . Threshold Issues ............................................................................ 4 B. Doctrine .......................................................................................... 12 C. The Patent Standard and Races to Invent ................................. 15 D. Relationship Between Patent Standards and Patent Scop e ............................................................................................. .. 17 E. The Proposed Patent Standard ................................................... 19 II1. MODELING THE STANDARD: PATENTS AS INCENTIVES TO IN V EN T ........................................................................................ 20 A. A Formal Model of the Invention Process ............................... 20 B. Low Uncertainty Research and the Model ............................... 29 C. Incentives to Develop ................................................................. 32 D. Why Not Use Commercial Certainty as the Patentability Standard? ................................................. ................................... 33 E. Nonobviousness Doctrine and the Uncertainty-Based Model ............................................................................................. 34 F. Risk Aversion and High-Cost -
Confusing Patent Eligibility
CONFUSING PATENT ELIGIBILITY DAVID 0. TAYLOR* INTRODUCTION ................................................. 158 I. CODIFYING PATENT ELIGIBILITY ....................... 164 A. The FirstPatent Statute ........................... 164 B. The Patent Statute Between 1793 and 1952................... 166 C. The Modern Patent Statute ................ ..... 170 D. Lessons About Eligibility Law ................... 174 II. UNRAVELING PATENT ELIGIBILITY. ........ ............. 178 A. Mayo Collaborative Servs. v. Prometheus Labs............ 178 B. Alice Corp. v. CLS Bank Int'l .......... .......... 184 III. UNDERLYING CONFUSION ........................... 186 A. The Requirements of Patentability.................................. 186 B. Claim Breadth............................ 188 1. The Supreme Court's Underlying Concerns............ 189 2. Existing Statutory Requirements Address the Concerns with Claim Breadth .............. 191 3. The Supreme Court Wrongly Rejected Use of Existing Statutory Requirements to Address Claim Breadth ..................................... 197 4. Even if § 101 Was Needed to Exclude Patenting of Natural Laws and Phenomena, A Simple Statutory Interpretation Would Do So .................... 212 C. Claim Abstractness ........................... 221 1. Problems with the Supreme Court's Test................221 2. Existing Statutory Requirements Address Abstractness, Yet the Supreme Court Has Not Even Addressed Them.............................. 223 IV. LACK OF ADMINISTRABILITY ....................... ....... 227 A. Whether a -
01-618. Eldred V. Ashcroft
1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 ERIC ELDRED, ET AL., : 4 Petitioners : 5 v. : No. 01-618 6 JOHN D. ASHCROFT, ATTORNEY : 7 GENERAL : 8 - - - - - - - - - - - - - - - -X 9 Washington, D.C. 10 Wednesday, October 9, 2002 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 10:03 a.m. 14 APPEARANCES: 15 LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of 16 the Petitioners. 17 THEODORE B. OLSON, ESQ., Solicitor General, Department of 18 Justice, Washington, D.C.; on behalf of the 19 Respondent. 20 21 22 23 24 25 1 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 LAWRENCE LESSIG, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF 6 THEODORE B. OLSON, ESQ. 7 On behalf of the Respondent 25 8 REBUTTAL ARGUMENT OF 9 LAWRENCE LESSIG, ESQ. 10 On behalf of the Petitioners 48 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 P R O C E E D I N G S 2 (10:03 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 now in Number 01-618, Eric Eldred v. John D. Ashcroft. 5 Mr. Lessig. 6 ORAL ARGUMENT OF LAWRENCE LESSIG 7 ON BEHALF OF THE PETITIONERS 8 MR. -
Illustrators' Partnership of America and Co-Chair of the American Society of Illustrators Partnership, Is One of Those Opponents
I L L U S T R A T O R S ‘ P A R T N E R S H I P 8 4 5 M O R A I N E S T R E E T M A R S H F I E L D , M A S S A C H U S E T T S USA 0 2 0 5 0 t 7 8 1 - 8 3 7 - 9 1 5 2 w w w . i l l u s t r a t o r s p a r t n e r s h i p . o r g February 3, 2013 Maria Pallante Register of Copyrights US Copyright Office 101 Independence Ave. S.E. Washington, D.C. 20559-6000 RE: Notice of Inquiry, Copyright Office, Library of Congress Orphan Works and Mass Digitization (77 FR 64555) Comments of the Illustrators’ Partnership of America In its October 22, 2012 Notice of Inquiry, the Copyright Office has asked for comments from interested parties regarding “what has changed in the legal and business environments during the past four years that might be relevant to a resolution of the [orphan works] problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.” As rightsholders, we welcome and appreciate the opportunity to comment. In the past, we have not opposed orphan works legislation in principle; but we have opposed legislation drafted so broadly that it would have permitted the widespread orphaning and infringement of copyright-protected art. In 2008, the Illustrators’ Partnership was joined by 84 other creators’ organizations in opposing that legislation; 167,000 letters were sent to members of Congress from our website. -
ELDRED V. ASHCROFT: the CONSTITUTIONALITY of the COPYRIGHT TERM EXTENSION ACT by Michaeljones
COPYRIGHT ELDRED V. ASHCROFT: THE CONSTITUTIONALITY OF THE COPYRIGHT TERM EXTENSION ACT By MichaelJones On January 15, 2003, the Supreme Court upheld the constitutionality of the Copyright Term Extension Act ("CTEA"), which extended the term of copyright protection by twenty years.2 The decision has been ap- plauded by copyright protectionists who regard the extension as an effec- tive incentive to creators. In their view, it is a perfectly rational piece of legislation that reflects Congress's judgment as to the proper copyright term, balances the interests of copyright holders and users, and brings the3 United States into line with the European Union's copyright regime. However, the CTEA has been deplored by champions of a robust public domain, who see the extension as a giveaway to powerful conglomerates, which runs contrary to the public interest.4 Such activists see the CTEA as, in the words of Justice Stevens, a "gratuitous transfer of wealth" that will impoverish the public domain. 5 Consequently, Eldred, for those in agree- ment with Justice Stevens, is nothing less than the "Dred Scott case for 6 culture." The Court in Eldred rejected the petitioners' claims that (1) the CTEA did not pass constitutional muster under the Copyright Clause's "limited © 2004 Berkeley Technology Law Journal & Berkeley Center for Law and Technology. 1. Sonny Bono Copyright Term Extension Act, 17 U.S.C. §§ 108, 203, 301-304 (2002). The Act's four provisions consider term extensions, transfer rights, a new in- fringement exception, and the division of fees, respectively; this Note deals only with the first provision, that of term extensions. -
THE NEGATIVE IMPLICATIONS of the COMMERCE CLAUSE* Jom B
THE NEGATIVE IMPLICATIONS OF THE COMMERCE CLAUSE* Jom B. SHoLLEYt ON MARCH 4, 1935, the United States Supreme Court held in Baldwin v. Seelig, that the state of New York had no power to protect its milk Producers against underselling by the producers of other states even though the former were by law forbidden to sell below prescribed prices,2 and the resulting competition would go far to wreck the whole statutory system. The particular statute condemned forbade in effect the sale of imported milk in New York unless its producers had been paid the equivalent of the New York standard price. The gist of the opin- ion of Mr. Justice Cardozo is contained in the following excerpts: If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce be- tween the states to the power of the nation.3 What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subor- dinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrieragainst competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. -
13-485 Comptroller of Treasury of MD. V. Wynne (05/18/2015)
(Slip Opinion) OCTOBER TERM, 2014 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus COMPTROLLER OF THE TREASURY OF MARYLAND v. WYNNE ET UX. CERTIORARI TO THE COURT OF APPEALS OF MARYLAND No. 13–485. Argued November 12, 2014—Decided May 18, 2015 Maryland’s personal income tax on state residents consists of a “state” income tax, Md. Tax-Gen. Code Ann. §10–105(a), and a “county” in- come tax, §§10–103, 10–106. Residents who pay income tax to anoth- er jurisdiction for income earned in that other jurisdiction are al- lowed a credit against the “state” tax but not the “county” tax. §10– 703. Nonresidents who earn income from sources within Maryland must pay the “state” income tax, §§10–105(d), 10–210, and nonresi- dents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax, §10–106.1. Respondents, Maryland residents, earned pass-through income from a Subchapter S corporation that earned income in several States. Respondents claimed an income tax credit on their 2006 Maryland income tax return for taxes paid to other States. The Mary- land State Comptroller of the Treasury, petitioner here, allowed re- spondents a credit against their “state” income tax but not against their “county” income tax and assessed a tax deficiency. -
The Copyright Act of 1976 (As Amended and Codified)
The Copyright Act of 1976 (as amended and codified) The Act of October 19, 1976 , Public Law Number 94-553 , 90 Stat. 2598, effective January 1, 1978. Chronology of Amendments Public Law No. 95-94 , 91 Stat. 653, 682 (Aug. 5, 1977) amended Sections 203 and 708. Public Law No. 95-598 , 92 Stat. 2676 (Nov. 6, 1978) amended Section 201. Public Law No. 96-517 , 94 Stat. 3028 (Dec. 12, 1980) amended Sections 101 and 117. Public Law No. 97-180 , 96 Stat. 93 (May 24, 1982) amended Section 506. Public Law No. 97-215 , 96 Stat. 178 (July 13, 1982) amended Section 601. Public Law No. 97-366 , 96 Stat. 1759 (Oct. 25, 1982) amended Section 110, 708. Public Law No. 98-450 , 98 Stat. 1727 (Oct. 4, 1984) amended Sections 109 and 115. Public Law No. 98-620 , 98 Stat. 3347 (Nov. 8, 1984) added Chapter 9 (§ § 901 et seq. ). Public Law No. 99-397 , 100 Stat. 848 (Aug. 27, 1986) amended Sections 111 and 801. Public Law No. 100-159 , 101 Stat. 900 (Nov. 9, 1987) amended Sections 902 and 914. Public Law No. 100-568 , 102 Stat. 2853 (Oct. 31, 1988) added Section 116A and amended Sections 101, 116, 205, 301, 401, 402, 403, 404, 405, 406, 407, 408, 411, 501, 504, 801, and 804. Public Law No. 100-617 , 102 Stat. 3194 (Nov. 5, 1988) amended Section 109 and 17 U.S.C. § 109 note. Public Law No. 100-667 , 102 Stat. 3949 (Nov. 16, 1988) added Section 119 and amended Sections 111, 501, 801, and 804. -
Why Preponderance Is the Proper Burden of Proof for Intentional Trademark Infringements Under the Lanham Act
Oklahoma Law Review Volume 67 Number 1 2014 Intending to Confuse: Why Preponderance is the Proper Burden of Proof for Intentional Trademark Infringements Under the Lanham Act Kelly Collins Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Intellectual Property Law Commons Recommended Citation Kelly Collins, Intending to Confuse: Why Preponderance is the Proper Burden of Proof for Intentional Trademark Infringements Under the Lanham Act, 67 OKLA. L. REV. 73 (2014), https://digitalcommons.law.ou.edu/olr/vol67/iss1/2 This Comment is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. COMMENTS Intending to Confuse: Why Preponderance Is the Proper Burden of Proof for Intentional Trademark Infringements Under the Lanham Act* To protect trade-marks . is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.1 [A] reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask.2 -Judge Learned Hand I. Introduction Though not as domineering as it is in the realm of patents or copyright, federal law still plays a significant role with respect to trademarks—the most prominent promulgation coming in the form of the Lanham Act of 1946 (Lanham Act).3 The Lanham Act provides for the national protection of trademarks, the importance of which was noted in Congress’s statement in connection with the Act’s adoption. -
Tax Reform: Recent Federal Proposals Revive Some Dormant State Issues
What’s News in Tax Analysis that matters from Washington National Tax Tax Reform: Recent Federal Proposals Revive Some Dormant State Issues July 24, 2017 by Sarah McGahan, Alec Mullee, Shirley Sicilian, and Dan De Jong, Washington National Tax* To reform, or not to reform? Although the Trump Administration and congressional Republicans continue to pursue tax reform, the process is inherently challenging. Most of these challenges arise at the federal level, of course. But some may arise at the state level, such as the dormant Foreign Commerce Clause of the U.S. Constitution, which restricts the states from favoring domestic over foreign commerce. The Import-Export Clause, which prohibits states from imposing imposts and duties on imports or exports, might also create issues. While the Foreign Commerce Clause and Import-Export Clause are not often raised in the state tax realm, certain features of federal tax reform proposals—such as the border tax adjustment and mandatory repatriation―may bring these constitutional clauses to the fore if the proposals become law and are adopted by states, either as a matter of choice or because of the manner in which the states conform to the federal IRC.1 Thus, states may want to start considering these possible issues and implications. This article is intended to describe potential issues and to raise questions. It is not intended to reach any conclusions or to express a KPMG LLP position on any particular tax reform proposal. * Shirley Sicilian is a managing director in the State and Local Tax (“SALT”) group of Washington National Tax (“WNT”) and serves as the firm’s National Director for State and Local Tax Controversy.