Quarterly Journal 46-1 Volume 46, Issue 01 September 2018

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The AIPLA Quarterly Journal, a publication of the American Intellectual Property Law Association, is housed at the George Washington University Law School and is edited and managed by an Editorial Board of intellectual property experts and a staff of law students under the direction of the Editor-in-Chief, Professor Joan Schaffner. 

The Quarterly Journal is dedicated to presenting materials relating to intellectual property matters and is published four times per year. Editorial Board members (all of whom are lawyers) are selected based upon demonstrated interest and experience, and student staff members are selected from the students of the GWU Law School.
 
Compulsory Licensing of Pharmaceutical Patents in the Russian Federation Threatens Foreign and Domestic Drug Developers

Bruce Alexander McDonald, Vladislav Ugryumov and Denis Kolesnikov

Compulsory Licensing of Pharmaceutical Patents in the Russian Federation Threatens Foreign and Domestic Drug Developers

Foreign and domestic developers of innovative drugs in the Russian Federation are bracing for the impact of possible amendments to antimonopoly and pharmaceutical laws proposed by the Russian Federal Antimonopoly Service (FAS) that would sharply limit patent protection for pharmaceutical products and medical devices.  Among them are provisions that would institutionalize compulsory licensing in the pharmaceutical sector as an asserted means of lowering the cost of drugs and medical devices to Russian consumers. 

 

These measures are opposed by the business community, and at least two government agencies, the Russian Ministry of Economic Developments and Federal Service for Intellectual Property (“Rospatent”).  Opponents of the measures point to evidence that compulsory licensing does not lead to lower drug prices or increased access to medicines, that these goals are more effectively achieved by means of direct government purchases at discounted prices, and that the proposed amendments would increase the cost and reduce the availability of innovative drugs in the Russian Federation by driving developers out of the market.
 
Which of the FAS proposals will be enacted, if any, is unclear.  In this context, this Article summarizes the reasons why the adoption of the FAS proposals would damage the Russian pharmaceutical industry. This Article then posits that the direct purchase of medicines and medical devices by the Russian government at discounted prices is a more effective means to increase the availability of life-saving pharmaceutical products and medical devices to Russian consumers.
Can Copyright Save the U.S. News Industry?: Applying the 2016 European Union Proposal to the United States

Lindsay Marks

Can Copyright Save the U.S. News Industry?

Today, newspapers across the world are struggling. The internet and online news brought about many problems for newspapers, including an unprofitable business model, an inattentive readership, and new competitors like news aggregators and social media sites. The unsustainability of newspapers is an issue fundamental to the state of our democracy.

 
This Note seeks to address how the United States might update its copyright laws to better protect the news industry. Part II discusses the problems facing the domestic news industry, including the declining attention spans of readers and the impact of news aggregates and social media sites. After exploring these problems, this Note explores the European Union’s September 2016 Copyright Proposal 9 to help newspaper publications continue to succeed. Part III analyzes whether aspects of the E.U. Proposal would help the newspaper industry in the United States. This Note ultimately recommends that the United States look to the E.U. Proposal for guidance, and pass legislation that explicitly gives copyright protection to newspaper ledes 10 and snippets, and clarifies the fair-use doctrine.
Mistakes in Patent Law: Reforming the Reissue Statute in Light of Alice

Ashley Cade

Mistakes in Patent Law: Reforming the Reissue Statute in Light of Alice

This Note argues for an amendment to 35 U.S.C. § 251 — the Reissue Statute. Specifically, it proposes a change that would enable patent owners to cure defects in their patents for want of subject-matter eligibility. The Note explains that both mutual mistake and the primary-jurisdiction doctrine provide the theoretical foundations behind an amendment to the Reissue Statute. Application of the mutual-mistake doctrine to patent law shows that § 101 drafting issues are worthy of a do-over. The primary-jurisdiction doctrine provides a justification for the conclusion that the USPTO is the best forum to allow amendments to the patent, based on agency expertise and the court’s lack of power to amend patent claims during litigation, when § 101 issues often arise. Amending the Reissue Statute incorporates the mutual-mistake concept, providing an avenue for patent owners to cure patents defective due to potentially poor draftsmanship at the USPTO rather than the courts.

The Stakes Have Never Been Higher: Why States Should Adopt a Model State Intent-to-Use Trademark Registration System to Facilitate the National Expansion of the Marijuana Industry​

Sarah Teitelman

The Stakes Have Never Been Higher: Why States Should Adopt a Model State Intent-to-Use Trademark Registration System to Facilitate the National Expansion of the Marijuana Industry

Marijuana legalization is one of the hot-button issues being debated in the United States. While a majority of citizens support marijuana legalization, the drug remains an illegal substance under the Controlled Substance Act (CSA). The United States Patent and Trademark Office has also made clear that until marijuana is rescheduled under the CSA, it will not register trademarks for marijuana goods and services because of the lawful use in commerce requirement. Accordingly, states have become the primary avenue for marijuana business to register their trademarks because they do not require a mark to be lawfully used in commerce. However, the current state-trademark-registration regime is inadequate because the Model State Trademark Act, which all states adopt in full or in part, only provides for use-based trademark applications. As such, marijuana businesses risk trademark dilution if they expand into other states because they can only register their trademarks after they begin operating in a state.

This Note argues states that have legalized medical marijuana should adopt a Model State Intent-to-Use Registration System (Model ITU System) to facilitate the expansion of the marijuana industry. A Model ITU System would provide marijuana business quasi-national trademark rights through the use of intent-to-use trademark applications and secure protection for their brand signals before making substantial investments toward expansion. Additionally, a Model ITU System would promote the policy of trademarks serving as source identifiers for goods and services.

Knobbe Martens