Quarterly Journal Volume 54, Issue 3 September 2026

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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.

QJ 54.3 - Human-Required Originality: Copyright Eligibility in a Post-AI World

Ryan Whalen

HUMAN-REQUIRED ORIGINALITY: COPYRIGHT ELIGIBILITY IN A POST-AI WORLD

Generative artificial intelligence upends the assumptions that have anchored U.S. copyright law for more than a century. By enabling the production of high‑quality expressive works at effectively zero marginal cost, GenAI destabilizes copyright’s utilitarian foundation and exposes a deep incoherence in the originality requirement: the law grants exclusive rights to human‑authored works that could have been produced just as easily—and at no cost—by modern generative systems, while denying protection to the machine‑generated equivalents that render human effort unnecessary. At the same time, GenAI introduces a dynamic risk that existing doctrine is unequipped to address: as AI increasingly substitutes for human creators in markets characterized by commoditized content, human participation may collapse, starving future models of the novel, high‑signal training data needed for continued aesthetic and cultural evolution. Left unaddressed, these twin pressures threaten both the theoretical coherence and the long‑term creative vitality of the copyright system.

This Article argues that the core of the problem lies not in questions of infringement or AI authorship, but in copyright’s threshold requirement: the “modicum of creativity” standard no longer filters works that require human incentives from those that do not. I propose a new, technologically grounded interpretation of originality—the human‑required creativity standard—under which copyright protection attaches only to works that could not have been generated by state‑of‑the‑art models with de minimis human input at the time of authorship or registration. This content‑focused approach restores alignment between copyright’s incentives and its constitutional purpose by denying protection to trivially generable works regardless of whether a human or a machine produced them, while continuing to protect works that demand meaningful human creative contribution.

A rebuttable presumption of eligibility and an affirmative defense of trivial generability make the human required standard administratively workable while preserving automatic copyright protection. The framework remains compatible with international treaty obligations and avoids prohibited formalities. By grounding copyright eligibility in the realities of modern creative production, the human‑required standard offers a path toward preserving human creativity, supporting sustainable innovation in AI, and re‑anchoring copyright law in its fundamental task: promoting progress in the arts and sciences.
QJ 54.3 - Section 284 Reform: Guiding the Future of Patent Damages Methodologies

Tyler Thompson

 

To encourage innovation and progress, the patent system grants inventors limited monopolies enforced through civil damages awards against infringers. Patent damages are governed by 35 U.S.C. § 284, which guarantees patentees no less than a reasonable royalty but offers no further guidance on how damages should be calculated. As a result, courts have been left to apportion the value of a patented feature from layers of unpatented technology with no statutory benchmark and only an inconsistently applied body of case law to guide them. That gap allows parties to present massively divergent damages figures to the jury through competing expert testimony on calculation methodologies.

Federal Rule of Evidence 702 tasks trial judges with gatekeeping responsibility over this testimony, while Rule 104(a) governs the procedure for deciding admissibility before trial. In practice, courts have applied these reliability and relevance requirements inconsistently, allowing unreliable testimony to reach juries and produce inflated or deflated awards. The Federal Circuit's recent en banc decision in EcoFactor, Inc. v. Google LLC illustrates this instability: even sitting en banc, the court could not agree on how rigorously trial courts must police damages testimony. This unpredictability has contributed to a persistently high rate of appellate reversals and remands, increasing litigation costs, decreasing court efficiency, and undermining the innovation incentives the patent system is designed to protect.

This Note argues that Congress should amend § 284 to codify the three principal damages methodologies recognized in Federal Circuit case law, along with a non-exhaustive list of admissibility factors drawn from existing Federal Circuit precedent. Doing so would not resolve every doctrinal dispute or eliminate judicial discretion, but it would translate already-established judicial principles into a clear statutory benchmark, improving consistency at the gatekeeping stage and reducing the costly reversals that currently result from inconsistent application of otherwise settled law.
QJ-49-3-Leijon QJ 54.3 - Sealing the Loophole: A Legislative Odyssey Against Small-Package Counterfeits

Runzi Xu

SEALING THE LOOPHOLE: A LEGISLATIVE ODYSSEY AGAINST SMALL-PACKAGE COUNTERFEITS

 


The rapid growth of e-commerce and small-package shipments has transformed the global counterfeit trade, enabling counterfeiters to exploit the United States' de minimis import exemption and overwhelm customs enforcement. Although U.S. Customs and Border Protection  possesses broad authority to seize counterfeit goods, the resource constraints, outdated enforcement mechanisms, and the current Section 321 framework has created significant gaps that allow counterfeit products to enter the domestic market. This Note examines the United States' current anti-counterfeiting regime alongside the European Union's more streamlined border enforcement and information-sharing systems and proposes two targeted legislative reforms. First, Congress should redefine the de minimis exemption by supplementing the existing monetary threshold with size- and weight-based criteria, aligning eligibility with trading partners' de minimis standards where appropriate, and limiting the exemption for categories of goods that are especially susceptible to counterfeiting. Second, Congress should establish a centralized trademark enforcement platform, funded through trademark registration revenue, to facilitate real-time collaboration between CBP and trademark owners. Together, these reforms would strengthen border enforcement, improve the efficient allocation of customs resources, and better protect consumers, trademark owners, and the integrity of the U.S. marketplace.

Knobbe Martens

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