Quarterly Journal 49-2
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.
Agnes Beatrice Gambill
Kari Kammel, Jay Kennedy, Daniel Cermak, and Minelli Manoukian
RESPONSIBILITY FOR THE SALE OF TRADEMARK COUNTERFEITS ONLINE: STRIKING A BALANCE IN SECONDARY LIABILITY WHILE PROTECTING CONSUMERS
This paper provides a comprehensive analysis of the current state of the legal framework secondary trademark liability for the sale of counterfeit goods by third parties from a legal perspective and through the perspective of the opportunity or crime triangle used by social scientists. This issue continues to grow as technology rapidly expands and as e-commerce explodes and the current legal framework designed to protect consumers and trademark owners fails since it was crafted for a brick-and-mortar environment.
Jan Schmitz and Fabian Hoffmann
SEP ROYALTY RATE CALCULATION ON THE BASIS OF THE PRESENT VALUE ADDED (PVA): A MODEL AND ITS APPLICATION IN THE GERMAN LEGAL ORDER
The most common method for standard essential patent (SEP) valuation and determining a fair, reasonable, and non-discriminative (FRAND) royalty rate is based on comparable license agreements. This method is relatively simple to apply but has several disadvantages. First, license agreements are often not comparable on important points. Second, they are often based on a selection by the submitting party, who has an interest in selecting only favorable license agreements for comparison. And third, those selected agreements might not have resulted from a fair negotiation, because of possible market power by either of the two sides.
In this Article, we therefore suggest how the present value added (PVA) methodology can be used to calculate the FRAND value of specific SEP technologies, avoiding biases that are intrinsically linked to the comparable licensing approach. The PVA approach can also serve as valuation methodology for the whole standard in the context of the Top-Down approach. To illustrate the approach, we present a simple interperiodical valuation model.
To derive a FRAND royalty rate, we then suggest how the PVA created can be apportioned between the SEP holders and the implementer. The second contribution of this Article is therefore the normative discussion of the apportionment of the PVA.
Finally, we show how the PVA methodology can be practically applied by running a hypothetical example of a full FRAND royalty estimation. The German legal framework has been chosen, since it is the European jurisdiction where an increasingly large number of legal disputes related to SEPs are adjudicated.
PARASITES OR BOOSTERS OF HUMAN CREATIVITY?: A MODEL TO SOLVE COPYRIGHT ISSUES OF TRAINING DATASETS OF ARTIFICIAL INTELLIGENCE BEFORE ALPHAART DEFEATS HUMAN ARTISTS
Artificial intelligence (“AI”) is becoming more sophisticated and widespread, as it is considered the source of wealth for companies and governments across the world. This trend is also evident in the creative industry where AI has advanced to the point where it generates high quality musical and visual works that appeal to the masses. With such evolution of AI technology, there is a growing concern that AI may become a threat to human creators: if AI successfully produces more popular creative content than human creators do, AI may outcompete human creators in the job market and eventually undermine their incentive to create. In order for an AI system to generate creative content, however, it must be fed with similar or identical types of creative content that may be under copyright protection. This Note explains that such use without authorization may amount to copyright infringement, but currently it is difficult to enforce the rights of copyright holders due to the opacity of data used in training creative AI, that is, AI that produces creative works. This Note then examines the current legislative developments regarding the copyright issues of AI systems and discusses how the tensions between copyright owners and technology industry stakeholders have been alleviated. Finally, this Note calls for a model that increases data transparency and balances interests of both human creators and AI developers, and proposes the Good Data Model—which consists of (1) a data certification program, (2) a license scheme for collecting online content, and (3) a suspicious AI reporting system—as a solution that helps build a healthy ecosystem where creative AI and human creators co-exist peacefully and achieve super-creativity together.
A NEW INTERNATIONAL PATENT COURT: THE EXTRATERRITORIAL SOLUTION TO THE EXTRATERRITORIAL PROBLEM OF WESTERNGECO
Patent law is territorial by nature, as each country decides for itself which inventions are patentable, and the scope of protections offered to them. Even so, attempts to harmonize patent laws on an international level have served to bring greater unity across a wide range of the laws from validity to priority dates. In light of this growing trend in our increasingly global marketplace, this Note recommends the creation of an international patent court, organized through the United Nations in order to achieve as broad of international coverage as possible. The jurisdictional scope of this court would be narrowly tailored, however, as a response to the decision of the Supreme Court of the United States in WesternGeco v. ION Geophysical, which allowed for the award of foreign damages resulting from domestic infringement. Skeptics of this decision have warned that it may prompt foreign nations to extend their patent protections so as to cover activities in the United States and elsewhere, thereby ignoring the traditional territorial borders of patent laws. This Note examines the relevant case law behind this issue, as well as existing international agreements representative of harmonizing efforts. The goal is to design a court capable of resolving these cross-border issues on an international basis should they arise, while keeping its objectives narrow enough to encourage compromise, cooperation, and participation among the world’s many different patent systems.
AIPLA 2021 Annual Meeting
October 28 to 30, 2021We look forward to seeing you in-person at the Gaylord National Resort & Convention Center for our 2021 Annual Meeting, which will bring IP professionals together to network, learn, & grow, among the best and brightest in IP Law.
2021 Trade Secret Summit
November 8 to 9, 2021 | TBDPlease join the AIPLA Trade Secret Committee for the 2021 Trade Secret Summit, which is being held November 8-9, 2021 at the headquarters of SolarWinds in Austin, Texas. The AIPLA Trade Secret Summit is the leading trade secret conference in the nation, with speakers from across the spectrum of private practitioners, in-house counsel, government, and academia, as well as fantastic networking opportunities.
2021 Corporate Practice Institute (Virtual)
November 16 to 17, 2021 | TBDThis Corporate Practice Institute is a two-day virtual event designed for Corporate in-house counsel, including attorneys and patent agents. The program will run from 12 noon to 5:30 and include 3 one-hour CLE sessions and a one-hour networking session each day.
AIPLA 2022 Mid-Winter Institute
February 2 to 4, 2022To be held at the Omni Rancho Las Palmas in Rancho Mirage, CA. More information coming soon!
AIPLA 2022 Spring Meeting
May 17 to 19, 2022To be held at the The Roosevelt in New Orleans, LA. More information coming soon!