Quarterly Journal Volume 52, Issue 2 August 2024

THE EUROPEAN UNIFIED PATENT COURT: CONSIDERATIONS REGARDING THE COURT’S APPROACH TO THE DIVERSE DIMENSIONS OF THE INNOVATION ECOSYSTEM 

On June 1st, 2023, the Unified Patent Court (UPC) commenced operations in Europe. This development is of major significance to the international patent world, as it establishes a single patent right for the majority of EU member states, along with the court system required to enforce it.

The implementation of the UPC, as well as the entry into force of the so-called Patent Package which sets forth the accompanying substantive and procedural law, crowns a 50-year period of efforts to harmonize patent law in Europe. While its original ambition of covering the EU in its entirety has not been achieved (so far), UPC and Patent Package constitute a major step forward in facilitating international patent protection and enforcement.

This article starts by describing the background of the UPC, along with an overview of the history and structure of the European Unitary Patent system as a whole and a discussion of the underlying Patent Package. We examine its organizational integration, legal classification, evolution and structure, as well as the UPC’s relationship to the European Court of Justice (ECJ), its jurisdiction and its Rules of Procedure (RoP).  Next, the article examines several distinctive features of the UPC, including opting-out from its jurisdiction, bifurcation, injunctions, and the Court’s advances in digitization. The final segment provides a reflection on the Court’s stance vis-à-vis innovation. We ask whether the Court will view patents, narrowly, as a mere technical tool that grants an inventor market power, or alternatively, more comprehensively, as a property right, integrated into the overall legal and economic framework. A preponderance of large portfolio holders as litigants in the court, might provide a truncated view of the innovation ecosystem. We therefore consider whether smaller innovators might be reluctant to make use of the Court and how this situation can be remedied if the Court makes use of the interpretative latitude conferred by the Patent Package.

WOBBLING 35 U.S.C. § 112(A) STANDARDS AND THEIR IMPACT ON ANTIBODY PATENTS 

The provision of 35 U.S.C. § 112(a) sets forth three requirements for a patent disclosure— written description, enablement, and best mode. The interpretation of section 112(a) has become an area of hot debate as applied to rapidly developing technologies such as biotechnology, pharmaceutics, and chemistry. Antibodies have unique diversity due to their biological process of formation and warrant special consideration with respect to enablement and written description requirements.  The disclosure requirements of antibodies and antibody-related molecules have changed over time as the scientific understanding of antibody biology has advanced. Comparison of the recent approaches taken in the U.S., Europe, and Japan in cases related to Amgen Inc. v. Sanofi, 598 U.S. 594 (2023) shows global trend in limiting the scope of antibody patent protection, although the approaches and reasonings of each jurisdiction is different from each other. In the U.S., there are still remaining questions related to determination of enablement, including how to apply Wands factors to determine if “undue experimentation” is necessary to make and use the claimed invention and enablement requirement is satisfied. For future analysis of antibody cases using Wands factors, the author proposes to distinguish the inherent labor intensiveness of the biological research and ingenuity required in making and using the invention. In addition, how to decide the extent of patent protection, or “a ring of equivalence,” a disclosure of one antibody can provide needs to be defined.

FROM MARCH MADNESS TO POSTGAME SADNESS: LEVELING THE PLAYING FIELD IN COLLEGIATE ATHLETICS BY ESTABLISHING A NATIONAL NAME, IMAGE, AND LIKENESS POLICY 

Until recently, the National Collegiate Athletic Association (“NCAA”) barred collegiate athletes from profiting off their name, image, and likeness (“NIL”). Though the NCAA has relaxed its stance and even adopted its own tentative NIL policy (albeit only after the Supreme Court all but required the NCAA to make such changes), there is no national standardization with regards to NIL regulation. Instead, it is left to each state to decide for itself whether to adopt an NIL policy at all and if so, what such laws should look like. To further complicate the issue, recent changes in the NCAA’s transfer rules have made it much easier for NCAA athletes to transfer between schools. The rapid liberalization of NCAA transfer policy coupled with the varying NIL policies across each state has led to a dramatic increase in the number of student-athletes who enter the transfer portal each year.

This Note balances the benefit of allowing student-athletes to profit off their own NIL with the issue of using the new transfer policies to “shop” schools based solely on NIL opportunities.  In doing so, this Note proposes that the proper way to deal with these concerns is through federal legislation that both (1) sets up general guidelines for a national NIL policy and (2) establishes an NIL commission as part of the Department of Education that would shape and oversee collegiate NIL policy on an ongoing basis.

NOTHING IS YOURS, EVERYTHING IS INFRINGING: THE DELICATE STATE OF COPYRIGHT IN VIDEO GAME LIVESTREAMS 

The video game industry makes up possibly the largest, most lucrative sector of the entertainment. A significant portion of that industry, which has developed in recent years, includes player using platforms like Youtube and Twitch to stream themselves playing games. Related is the recent rise of competitive video gaming, or Esports, which is itself often streamed. Despite these industry developments, the copyright law overarching the industry has not changed significantly since the 1980s and mean that all of these livestreams are likely infringing the copyright of the game developers and publishers. This note argues that video game livestreams, particularly those of Esports, are a transformative use of the underlying video game that qualifies as fair use. It reaches this conclusion by applying the four-step fair use analysis to these streams, including the recent clarification of that test by the Supreme Court in Warhol v. Goldsmith. It also draws comparison to recent case law addressing copyright ownership in the output of software used to create characters for film and television to argue that the contributions of video game players to the gameplay footage they produce is significant enough to be a transformative use of the underlying game.

BATTLE IN THE DIGITAL SPHERE: THE REPATRIATION OF DIGITIZED NATIVE AMERICAN CULTURAL PROPERTIES 

As a part of the national decolonization effort, various federal statutes have played a significant role in repatriating what has been looted from the hands of Native Americans. However, returning a number of cultural artifacts to affiliated communities does not allow indigenous people in the United States to fully regain their lost knowledge and cultural expressions. Furthermore, the increasingly widespread digitization of cultural properties exacerbates the narrow repatriation requirements under current federal laws. Native American communities once again risk losing control and ownership over their cultural heritage, this time on digital platforms as opposed to their previous loss of physical possession. Congress should draft new repatriation legislation to close the gap that leaves digitized Native American cultural heritage wholly unprotected. This Note argues that the new legislation should maintain a balance between respecting cultural protocols and allowing public access to Native American cultural resources. This Note proposes such new legislation to be based upon rules extracted from copyright laws, information privacy laws, and other international standards.