Tagged: Intellectual Property

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On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights

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This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

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BRCA1/2 Gene Patents Invalidated: Is it Finally about the Patient?

Earlier this week a district court in a dramatic decision invalidated BRCA 1/2 – two breast cancer gene patents held by Myriad Genetics. The Court based its decision on patent subject matter analysis holding that since the isolated DNA covered by Myriad’s patents is not markedly different from the native DNA as it exists in nature, it qualifies as a product of nature, which is not patentable subject matter.

No doubt, as commentators have noted (here and here), this decision if not overturned or limited on appeal could carry broad ramifications for the future gene patents. But, this decision signifies also a change in strategy in the efforts to restrict gene patents – a focus on the patient.

As I have written, most of the debates on gene patents addressed the way that gene patents affect genetic research – the concern that granting patents on the building blocks of genetic science will hinder the development of more complex innovations. Unsurprisingly, most academic proposals and legislative bills address the innovation problem. The effects on the patient until now took a back seat.

This lawsuit against Myriad signifies a change in that it finally places the patient and the administration of genetic testing at the center of the stage.  Although the Court’s holding focuses on patent subject matter the court dedicates a significant part of the opinion to access to BRCA1/2 genetic testing. Myriad charges about $3,000 for testing an exorbitant amount compared to other genetic tests. Furthermore, Myriad does not allow other laboratories to conduct the testing – all samples have to be sent to its headquarters in Salt Lake City. The opinion tells the stories of women who were unable to test to find out whether they carry the BRCA1/2 genes because Myriad would not accept their insurance. It recounts the ordeals of women who could not get definitive answers through Myriad’s testing and were precluded from seeking testing elsewhere. It underscores that women were unable to get a second opinion of the test results because tests are conducted only by Myriad. It also discusses the efforts of doctors and laboratories who were willing and able to offer BRCA1/2 testing but were precluded by Myriad from conducting the testing. 

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What’s a Tweet?

Twitter’s application for a trademark registration on the word “tweet” was recently rejected, which led to a discussion among some colleagues and myself as to whether the word is a generic term. The argument in favor is that the word “tweet” has become a common term, which has entered dictionaries and even the AP style guide, as the linked article shows.

A basic principle of of trademark law is that no one can trademark a “generic” term, which is to say, the common term for article or service being sold. Thus, no one could own the exclusive right to sell toothpaste under the name “toothpaste.” That would hardly be fair to competing sellers of toothpaste, and the generic term also doesn’t perform the basic function of a trademark, which is to tell consumers the source of the product, not what the product is.

Nonetheless, I would say that “tweet” is not generic. Yes, “tweet” has become a common term, but with what meaning? To me, “tweet” means, “a short message carried via the Twitter service.” It doesn’t mean, generically, “a short message,” or even “a short message carried via some social networking service.” It is specific to Twitter. I don’t think of the short messages I send to my Facebook friends as “tweets.”

This usage is confirmed by that eminently reliable source, Wikipedia, which defines “tweet” as “A micro-blog post on the Twitter social network site, or the act of posting on it.” And urbandictionary.com says that a “tweet” is “A post on Twitter, a real-time social messaging system.”

So I would say that “tweet” still performs a trademark’s source-indicating function. It tells you that the thing named is associated with Twitter specifically. Perhaps people will soon start referring to any short message as a “tweet,” but it hasn’t happened yet. So I say that “tweet” is not generic.

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The Age of Digital Convergence in Hong Kong

Just a quick note. I am fortunate to be in Hong Kong at The Age of Digital Convergence, An East-West Dialogue Law, Media, Technology. The Journalism and Media Studies Centre at The University of Hong Kong and Intellectual Property Law Center at Drake University Law School organized the event and the Faculty of Law at The University of Hong Kong and Technology & Entertainment Law Program at Vanderbilt University Law School co-sponsored.

The conference aims to address a range of questions:

What does it mean when people are born or have grown up digital? How do different forms of media interact with each other in an increasingly convergent environment? What type of legal, social and cultural challenges have arisen when people actively participate in the information age? Has the digital lifestyle paved the way for the development of new business models, social relationships and government regulation? Do we need to rethink some of our real-world assumptions when we talk about the Net Generation? Should traditional concepts, such as privacy, identity, free speech and journalism, be reconceptualized in cyberspace?

The panels include Digital Natives, Social Networks and the Virtual World; Content Control, Indecency and Pornography; Journalism in the Age of Convergence; New Media, Sociocultural Issues and Emerging Developments; Content Delivery, Multimedia Platforms and New Prosumers; Privacy, Identity and Brandjacking; Creativity 2.0, Technolegal Fixes and Copyright Reform; and Closing Address: “Hong Kong–Creative Capital in Asia”. The panelists have come from all over the world and several disciplines. Hearing so many different views and learning about some East Asian perspective on intellectual property and privacy has been quite stimulating. Last, I want to thank Peter Yu for inviting me to participate and as always being an excellent host.