4 3月 2017 日本、米国、欧州、アジア、bricsを始めとするグローバルな知財ニュース、コラム、分析、判決を日本語と英語で読める知的財産専門ニュースサイト anoxia vs hypoxia

Copyright survives — 2017-03-04

When I teach procd in my internet law class, I make two primary points. First, the case can’t possible be right. Judge easterbrook mangles UCC law and how the battle of the forms works. Second, the case can’t possibly be wrong: companies have to be able to price discriminate by restricting usage of information that is unprotected by copyright but expensive to gather. Without this ability, either the price of such information products will be higher, or they may not be created at all.

Many people disagree with me on the second point. In their view, the goal of copyright law is to regulate not just what should be protected, but to ensure that what is not protected stays in the public domain, no matter what.Anoxia vs hypoxia


it is against this backdrop that guy rub (ohio state) gives us his article forthcoming in the virginia law review: copyright survives: rethinking the copyright-contracts conflict, now available on SSRN. The abstract is here:

Twenty years ago, copyright died. More accurately, it was murdered. In 1996, in procd v. Zeidenberg, judge easterbrook, writing for the seventh circuit, held that a contract that restricted the use of factual information was not preempted by the copyright act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the procd approach is broadly adopted, the results would be dire.Anoxia vs hypoxia through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain. Contracts, we were repeatedly warned throughout the years, would kill copyright law.

This article challenges this scholarly consensus by studying the 288 court opinions that have dealt with the copyright-contract conflict over the past four decades. This examination reveals surprising facts: notwithstanding the scholars’ warnings, procd’s approach won the day and was embraced by most federal circuit courts. However, the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal.Anoxia vs hypoxia the article explains this discrepancy and shows that contracts are an ineffective tool to control information because they are too weak of a device to threaten or replace copyright law. Indeed, to paraphrase mark twain, the reports of the death of copyright were greatly exaggerated.

The article concludes by placing this analysis in context, as part of a broader ongoing discussion on the desirability and enforceability of standard-form agreements.

I really love this article. I think that resolving questions of how we should balance free ideas, access controls, and freedom of contract is incredibly difficult, and I have yet to see a good solution. I certainly don’t have one myself (yet). I have an article I’ve been working on since I was a fellow – the empty shell has a nice title, and little text.Anoxia vs hypoxia this article may inspire me to take another look at it. That said, I do have a few comments, after the jump.

First, I think the framing is interesting. The “death of copyright” motif – which is used more for a great abstract than the actual article and didn’t originate with rub – reveals a lot about differing views of copyright law. If you said to me, “copyright law is dead,” my first thought would be that content owners would be very unhappy, that we might see reduced incentives (if you believe in such a thing), that fair use is expanding, etc. So, to equate the death of copyright with a shrinking public domain reveals a very different starting point – one in which copyright’s primary role is to regulate the public domain rather than to provide protection for expressive works.Anoxia vs hypoxia now, the reality is that it does both, but priors will have an effect on how one considers cases like procd.

Second, the article’s examination of all preemption cases is thorough and admirable. It’s really impressive. And, importantly, the article considers whether focusing on litigated cases properly captures the in terrorem effects of contract provisions that dampen the use of ideas but never lead to litigation. The article concludes not, but I suspect that reasonable minds could differ on this.

Third, the article admittedly punts on one of the bigger issues – reverse engineering. It notes that only two anti-reverse engineering contracts were considered, and both were upheld (that is, not preempted).Anoxia vs hypoxia one case, bowers v. Baystate, has facts sympathetic to the content owner. The other, davidson, has facts (in my view) sympathetic to the defendants. It is the conflict between these two cases that first led me to think I should write an article about this, but I’m still working out how to get to the right answer (or even what the right answer is) in a principled way. And so, sadly, is this article. In other words, even if you agree with everything in this paper (and I agree with most of it), it’s not the end of the story.

Fourth, the concern about agreements is not limited to copyright. The article does a good job of point that out, asking why limitations in contracts that affect copyright rights should somehow be different from other limitations in contracts that affect other important rights, like arbitration.Anoxia vs hypoxia the article asks: why should reverse engineering be given a preferred spot over anti-class arbitration provisions that conflict with class action rules? Even with respect to information products, I consider very specific questions in trade secrets in my essay hidden in plain sight, which discusses whether mass market forms can/should/are used to keep information “secret” despite broad distribution.

Finally, the sum of all this is a question whether preemption is the right way to go. Are there better ways? Contractual? Antitrust? I don’t know, but I know folks have worked on different thoughts on this (e.G. Radin’s boilerplate). Continue reading …

CAFC vacates decision of ND cal in huawei case — 2017-03-04

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From the beginning of the decision:

The present appeals arise from five cases in the

Northern district of california. Technology properties

Limited LLC, phoenix digital solutions LLC, and patriot

Scientific corp. (collectively “technology properties”)

Asserted U.S. Patent no. 5,809,336 (the “’336 patent”)

Against huawei technologies co., ltd., futurewei technologies,

Inc., huawei device co., ltd., huawei device

USA inc., huawei technologies USA inc., ZTE corp., ZTE

USA, inc., samsung electronics co., ltd., samsung

Electronics america, inc., LG electronics, inc., LG electronics

U.S.A., inc., nintendo co., ltd., and nintendo of

America inc. (collectively “appellees”) in five separate

Litigations. After claim construction, the parties stipulated

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To non-infringement based on the district court’s construction

Of “an entire oscillator disposed upon said

Integrated circuit substrate.” technology properties

Appealed, and our court consolidated the appeals. Because

The district court erred in a portion of its construction

Of “entire oscillator,” we vacate and remand.

Prosecution disclaimer was at issue:

An applicant’s statements to the PTO characterizing

Its invention may give rise to prosecution disclaimer.

Uship intellectual props., LLC v. United states, 714 F.3d

1311, 1315 (fed. Cir. 2013). Prosecution disclaimer can

Arise from both claim amendments and arguments made

To the PTO. Biogen idec, inc. V. GlaxoSmithKline LLC,

713 F.3d 1090, 1095 (fed. Cir. 2013).Anoxia vs hypoxia the doctrine does

Not apply unless the disclaimer is “both clear and unmistakable

To one of ordinary skill in the art.” elbex video,

Ltd. V. Sensormatic elecs. Corp., 508 F.3d 1366, 1371

(fed. Cir. 2007) (quotations omitted). When determining

Whether disclaimer applies, we consider the statements in

The context of the entire prosecution. MIT v. Shire

Pharm., inc., 839 F.3d 1111, 1119 (fed. Cir. 2016). If the

Challenged statements are ambiguous or amenable to

Multiple reasonable interpretations, prosecution disclaimer

Is not established. Id

(…)

Technology properties presented clear and concise arguments

About the distinctions between magar and the

’336 patent in its briefing to our court. Had those same

Arguments been made to the patent office, our construction

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May have been different because the patentee likely

Disclaimed more than was necessary to overcome the

Examiner’s rejection. But the scope of surrender is not

Limited to what is absolutely necessary to avoid a prior art

Reference; patentees may surrender more than necessary.

See norian corp. V. Stryker corp., 432 F.3d 1356, 1361–62

(fed. Cir. 2005); fantasy sports props., inc. V.

Sportsline.Com, inc., 287 F.3d 1108, 1114–15 (fed. Cir.

2002). When this happens, we hold patentees to the

Actual arguments made, not the arguments that could

Have been made. Norian, 432 F.3d at 1361–62. The

Question is what a person of ordinary skill would understand

The patentee to have disclaimed during prosecution,

Not what a person of ordinary skill would think the patentee

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Needed to disclaim during prosecution.

[BUT]

The district court erred by holding that the patentee

Disclaimed any use of a command signal by the entire

Oscillator. Instead, the patentee disclaimed a particular

Use of a command signal—using a command signal to

Change the clock frequency. The patentee argued during

Prosecution that sheets was distinguishable from the

’336 patent claims because sheets requires “a command

Input . . . To change the clock speed.” J.A. 2127.

(…)

We hold that “an entire oscillator disposed upon said

Integrated circuit substrate” is “an oscillator located

Entirely on the same semiconductor substrate as the

Central processing unit that does not require a command

Input to change the clock frequency and whose frequency

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Is not fixed by any external crystal.” although this minor

Modification to the district court’s construction likely does

Not affect the outcome in this case, because the parties

Stipulated to non-infringement under the district court’s

Construction, the proper course of action is for us to vacate

And remand. We vacate the district court’s construction

And remand for further proceedings.

Link: http://www.Cafc.Uscourts.Gov/sites/default/files/opinions-orders/16-1306.Opinion.3-1-2017.1.PDF continue reading …

Plagiarism, faked data in the biofuels area — 2017-03-04

RetractionWatch has an interesting piece on the retraction of a paper in the biofuels area:

The retraction notice for “oleaginous yeast-based production of microbial oil from volatile fatty acids obtained by anaerobic digestion of red algae (gelidium amansii),” published in the korean journal of chemical engineering in april 2016 and retracted in january:

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The editors of the korean journal of chemical engineering have retracted this paper on request of the senior named author, professor jong moon park. The paper was written and submitted to KJCE by the corresponding author, tsolmonbaatar batbileg, former student of prof park, without the knowledge or permission of prof park. The second named author, dr xu xu, was also unaware of the writing or submission of the manuscript. The paper contained fabricated data and a substantial amount of material plagiarised from the following published articles: production of biodiesel from carbon sources of macroalgae, laminaria japonica bioresource technology 169 (2014) 455–461 xu xu, ji young kim, yu ri oh, jong moon park bioconversion of volatile fatty acids from macroalgae fermentation into microbial lipids by oleaginous yeast chemical engineering journal 264 (2015) 735–743 xu xu, ji young kim, hyun uk cho, hye rim park and jong moon park professor park apologizes to the readers of KJCE for the unethical actions of mr batbileg.Anoxia vs hypoxia

One remembers some of the confusion in the hwang woo suk matter, in which it was not clear that the senior author was aware of all the underlying facts of the papers published in the journal science.

Link to post in retractionwatch: http://retractionwatch.Com/2017/03/01/faked-data-plagiarism-no-co-author-okays-yeah-papers-retracted/ continue reading …