Category: Patents & Technology

Beyond Patents: Incentive Strategies for Ocean Plastic Remediation Technologies

Intellectual Property, Patents & Technology, Science & Technology One comment

By: Jacob Stotser With a garbage truck’s worth of plastic being dumped in the ocean each minute, there is a dire need for effective technological solutions aimed at mitigating the marine plastic pollution problem. However, the reliance of the U.S. patent system on market demand to incentivize this type of innovation has proven insufficient in light of the peculiarities of “green” technologies. To remedy this, this article proposes a multi-faceted incentivization approach that looks beyond the U.S. Patent and Trademark Office to stimulate the development of remediation technologies through comprehensive regulatory interventions, the establishment of prize funds and other alternative incentive mechanisms, and targeted reforms to patent procedures. Download Full Article (PDF) Cite: 23 Duke L. & Tech. Rev. 114

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Causation and Conception in American Inventorship

Alternative Intelligence, Intellectual Property, Patents & Technology, Science & Technology Leave a comment

By: Dan L. Burk Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 116

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COVID Vaccines and Intellectual Property Rights: Evaluating the Potential for National Legislation Implementing Global Patent Waivers

Health & Biotechnology, Intellectual Property, Patents & Technology Leave a comment

By: Ashley DaBiere Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 68

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Homography of Inventorship: DABUS and Valuing Inventors

Articles, Patents & Technology Leave a comment

By: Jordana Goodman On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for failing to understand the divergences that could result in patent invalidation. This Article adds to the literature by addressing Thaler’s tireless inventorship advocacy, highlighting that Thaler uses his position of privilege to argue for inventorship acknowledgement of his machine and simultaneously to relinquish his own inventorship recognition. To emphasize, there is no existing caselaw except the DABUS case where a potential inventor has argued for the acknowledgement of another inventor and simultaneously relinquished their own recognition – whether that unacknowledged inventor was human or not human. Thaler’s advocacy amplifies the need for continued conversation regarding closing the

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Crashed Software: Assessing Product Liability for Software Defects in Automated Vehicles

Intellectual Property, Patents & Technology, Science & Technology Leave a comment

By: Sunghyo Kim Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new challenges in bringing product liability claims against manufacturers and developers. Download Full Article (PDF) Cite: 16 Duke L. & Tech. Rev. 300

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The Licensing Function of Patent Intermediaries

Intellectual Property, Patents & Technology Leave a comment

By: John E. Dubiansky The contemporary patent marketplace is a complex ecosystem comprised of innovators and manufacturers who are often connected by a varied group of intermediaries. While there are a variety of intermediary business models—such as patent assertion entities and defensive aggregators—each facilitates a variant of a similar licensing transaction, connecting a set of patents held by a patent owner with a product or service offered by a prospective licensee. One explanation for the prevalence of intermediaries is that they engage in practices tantamount to arbitrage, acquiring patents and then licensing them at a profit because they enjoy greater success in patent litigation than patent holders would on their own. This paper advances an additional explanation: some intermediaries may serve a function analogous to a platform trading in non-exclusive licenses, overcoming search and valuation costs to facilitate licensing. This paper focuses on the use of two contract terms in intermediaries’ dealings with technology market participants: revenue sharing in patent acquisition and non-exclusive licensing. The Federal Trade Commission’s Patent Entity Activity Study reported that intermediaries used both of these terms. Building on those findings, this paper argues that intermediaries that use both provisions may, under some conditions, operate in a

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Weathering the Nest: Privacy Implications of Home Monitoring for the Aging American Population

Patents & Technology, Uncategorized

By: Jillisa Bronfman The research in this paper will seek to ascertain the extent of personal data entry and collection required to enjoy at least the minimal promised benefits of distributed intelligence and monitoring in the home. Particular attention will be given to the abilities and sensitivities of the population most likely to need these devices, notably the elderly and disabled. The paper will then evaluate whether existing legal limitations on the collection, maintenance, and use of such data are applicable to devices currently in use in the home environment and whether such regulations effectively protect privacy. Finally, given appropriate policy parameters, the paper will offer proposals to effectuate reasonable and practical privacy-protective solutions for developers and consumers. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 192

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Frand v. Compulsory Licensing: The Lesser of the Two Evils

Patents & Technology, Uncategorized

By: Srividhya Ragavan, Brendan Murphy, and Raj Davé This paper focuses on two types of licenses that can best be described as outliers—FRAND and compulsory licenses. Overall, these two specific forms of licenses share the objective of producing a fair and reasonable license of a technology protected by intellectual property. The comparable objective notwithstanding, each type of license achieves this end using different mechanisms. The FRAND license emphasizes providing the licensee with reasonable terms, e.g., by preventing a standard patent holder from extracting unreasonably high royalty rates. By contrast, compulsory licenses emphasize the public benefit that flows from enabling access to an otherwise inaccessible invention. Ultimately, both forms of license attempt to create a value for the licensed product that can be remarkably different from the product’s true market value. Nevertheless, both forms ultimately benefit the end-consumer who pays less to access a product subject to either of these forms of license. In comparing these two forms of licenses, the paper hopes to determine whether one form is better than the other, and if so, from whose perspective—the consumer, the licensor or the licensee. In doing so, this paper compares the different prevailing efforts to embrace such licenses as well

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