Quarterly Journal 47-3
In This Section
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.
QJ 47.3 - Patent Eligibility of Inventions Directed to Graphical User Interfaces
Malgorzata Kulczycka
Patent Eligibility of Inventions Directed to Graphical User Interfaces
The 2019 Guidance provides some clarity for determining patent eligible subject matter under § 101. For example, it clarifies that to be patent eligible, a claim needs to state a new and practical application of an alleged abstract idea.
As the USPTO continues to apply the 2019 Revised Guidance, the number of rejections under § 101 issued in patent applications directed to graphical user interfaces should continue to decline.
This article discusses several recent patent cases in which the inventions were directed to graphical user interfaces. In each of those cases, an applicant would have had a chance to advance their arguments against the § 101 rejections by showing how the recited graphical user interface integrates the alleged abstract idea into a practical application.
QJ 47.3 - The “Unwilling Licensee” in the Context of Standards Essential Patent Licensing Negotiations
Andre Schevciw
The “Unwilling Licensee” in the Context of Standards Essential Patent Licensing Negotiations
This article proposes a framework to determine whether an implementer of standards-essential patents (“SEPs”) is an “unwilling licensee” of fair, reasonable, and non-discriminatory (“FRAND”) licensing terms.
In recent years, scholars and courts have discussed extensively the potential for SEP holders to engage in “patent hold-up.” As a result, SEP holders are now mostly blocked from seeking injunctions, with a possible exception when the SEP implementer is an “unwilling licensee” of FRAND terms.
The SEP holder’s difficulty in seeking an injunction, the uncertainty in determining FRAND rates, and a lack of an agreed definition for “unwilling licensee” create the risk for the so-called “patent hold-out” problem. This article focuses on the “unwilling licensee” determination problem and proposes a framework based on a step-by-step, objective fact-based analysis. The framework aims to increase predictability for both SEP holders and SEP implementers.
QJ 47.3 - Artificial Human Life: Patentable, Playing God, Both?
Austin Grossfeld
Artificial Human Life: Patentable, Playing God, Both?
We as a species have been trying to learn how and why we do the things we do for hundreds of years. This curiosity resulted in scientists at the University of Cambridge making a revolutionary breakthrough by artificially creating an embryo in a laboratory setting.
However, with great discoveries come many questions. One of these questions is whether or not these scientists can patent their work. Attaining the answer to this question requires the analysis of decades of judicial, legislative, and agency decision-making.
This Note looks at the history of all three of these branches that factor into patent rights and requirements, while trying to narrow down the applicable precedent.
QJ 47.3 - Music to My Ears: Adding a Fair Use-Like Provision to the Anti-Bootlegging Statutes
Sean Hanlon
Music to My Ears: Adding a Fair Use-Like Provision to the Anti-Bootlegging Statutes
The federal anti-bootlegging statutes protect live musical performances from unauthorized use. The statutes were conceived in good faith, but have flaws and ambiguities that may impede their effectiveness. The main issues with the statutes are their conflicts with the First Amendment and Commerce Clause. While the statutes have survived challenges regarding the Commerce Clause, they remain vulnerable to First Amendment scrutiny because they lack a fair use exception.
This note delves into the existence and possible resolutions to these problems using social media and modern recording technology as possible bootlegging tools. It is imperative to make these changes as soon as possible considering the Beijing Audiovisual Treaty may further expand the copyright landscape to protect more forms of audiovisual works.
This Note suggests that the federal anti-bootlegging statutes be amended to add a fair use-like exception that may balance performers' rights with users' rights. In reaching this conclusion, this Note describes the digitization of recording technology, provides a comprehensive look into the anti-bootlegging statutes and their legislative history, and discusses copyright and anti-bootlegging cases addressing fair use and the First Amendment. Finally, this Note provides an example of how the anti-bootlegging statutes can be amended to prevent future problems.
QJ 47.3 - Product Hopping Analysis: A More Beneficial Approach
Divesh Patel
Product Hopping Analysis: A More Beneficial Approach
Product hopping in the pharmaceutical industry has become more prevalent over recent years, and courts have had varying responses to address this behavior. By focusing on a traditional antitrust analysis for the pharmaceutical industry, which is not a well-functioning market, courts have reached inconsistent decisions that do not necessarily punish the market exploiter and reward the honest competitor.
This Note looks to the drug approval process in the European Union, specifically Germany, and proposes a new standard that focuses on additional clinical benefits. Although courts do not typically assess the value of parties’ innovations, the pharmaceutical field is unique in its relationship between competitors and consumer, and thus warrants a new approach to address these issues.
By focusing on the clinical benefits of new formulations, courts can better encourage valuable innovation by branded drug companies and protect the market from trivial advancements made solely for the purpose of excluding generic companies from the market.
Upcoming Events
-
March In Rights and Compulsory Licenses
July 30, 2024 12:30 PM to 2:00 PM | Up to 90 Mins CLE
Join us as our speakers discuss march-in rights and compulsory licenses. Recent events like governmental agencies turning to march-in as a potential means to lower drug pricing or the pandemic have refueled the discussion on compulsory licenses here and in Europe. Our speakers will review the history of the Bayh Dole act as well as compulsory licenses in Europe and provide an overview of recent developments in both jurisdictions. Finally, the speakers touch on the implications and concerns for patent holders and future innovation in the biopharma space here and in Europe. -
AIPLA 2024 Annual Meeting
October 24 to 26, 2024
Join us as we bring IP professionals together to learn and connect. More information coming soon! The 2024 Annual meeting will take place at the Gaylord National Harbor Resort. Leadership Meetings on Wednesday, October 23. Programming scheduled October 24-26. -
2025 Leadership Forum
January 29 to 30, 2025
The Leadership Journey - From Survival (Subsistence) to Self-Fulfillment (Abundance). This invitation-only two-day program will address building strong leadership skills for all levels of experience. More details coming soon. -
2025 AIPLA Spring Meeting
May 13 to 15, 2025
Join us for this 2.5 day conference in Minneapolis, MN. Registration opens February 2025. More details coming soon!