Archives for: August 2006

Senate Mulls Patent Reform Bill

Posted by Jay on August 31st, 2006

We are down to the last few days of summer, and patent reform appears to be gaining some initial momentum in the Senate. Earlier this month, there was a bipartisan bill introduced in the Senate by Sens. Orrin Hatch and Patrick Leahy. Patent law has never been divided or amenable to classification along traditional political lines. But the debates and compromises among the stakeholders (PhRMA, BSA, IPO, PIA, AIPLA and the like) will be interesting to watch.

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George Allen's Political Blind Spot

Posted by andrew on August 30th, 2006

Some communities are effectively in a political blind spot, where not only their speech, but the very existence of their voice, is obscured and marginalized. They have difficulty finding an audience, not only because audience preferences are dominated by mainstream perspectives, but also because any potentially receptive listeners wouldn't know of the communities' perspectives or even think to look for them. Such communities cannot benefit from the Web's low entry barriers and search costs. If no one knows you're speaking, no one will look you up on Google, and certainly no one is going to link to your site, even if many people might actually be inclined to do so.

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Welcoming New Students

Posted by andrew on August 26th, 2006

The annual softball game between Carolina Law faculty and incoming 1Ls ended in time-honored fashion, with a blowout win for the Brandis section and a moral victory for the faculty (no major injuries!). As Eric Muller writes, "We have the Brandis team just where we want them. We decided to fool them by letting them score lots and lots of runs, scoring none ourselves, and making lots of errors in the field, thereby lulling them into a false sense of security. Now we will challenge them to a re-match and whup them, fielding a team consisting of only Richard Myers and Tom Kelley." Thanks to Ruth McKinney and Kelly Podger for taking many of these pictures after a strenuous weekend of orientation activities! This blog post is dedicated to our longtime pitcher and Professor Emeritus, Arnold Loewy, who had to miss the game after more than 20 years on the mound.

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Welcoming New Colleagues

Posted by andrew on August 25th, 2006

My colleague Deborah Weissman and her husband Lou Perez hosted a wonderful dinner party tonight to welcome our new colleagues Alistair Newbern and Tom Gallanis. Alistair will be an assistant professor in our civil clinic, while Tom will be a visiting professor teaching trusts and estates. More pictures below the fold. Welcome Alistair and Tom!

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New Book: Intellectual Property in Business Organizations

Posted by Jay on August 23rd, 2006

I am happy to report that a three-year effort by Prof. Richard Gruner, Prof. Shubha Ghosh and myself has reached an exciting outcome. Lexis-Nexis has just published our new casebook, Intellectual Property in Business Organizations.

The book deals with the IP issues faced by firms, from start-ups to large, publicly traded companies. Unlike other IP books that largely focus on the acquisition and enforcement of IP rights, this book deals with the transactional side of IP. It focuses on the business issues related to IP: ownership, licensing, financing based on IP, stock disclosures, and the antitrust, tax, bankruptcy, and mergers and acquisitions issues raised by IP.

Any comments or suggestions for improvement are most welcome.

Patent Settlements: Reverse Payments and Timing Market Entry by Generics

Posted by Jay on August 22nd, 2006

As a general matter patent settlements are good. Once both sides have a reasonable estimate of expected outcomes, there is a strong desire to reduce litigation costs and simply work it out.

Pharmaceutical patent infringement settlements between pioneer drug companies and generic ones raise issues that are somewhat unique and pose new questions over which the courts seem unsettled. In late June 2006, the U.S. Supreme Court denied certiorari in FTC v. Schering-Plough and let a 11th Circuit ruling stand that the settlement agreements between Schering-Plough and two generic companies (Upsher-Smith and ESI Lederle) did not unreasonably restrain competition beyong the scope of the patent grant.

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Jay Kesan Joins Voiceless

Posted by andrew on August 22nd, 2006

Jay KesanI am pleased to announce that from today, Jay P. Kesan, Professor and Director of the Program in Intellectual Property and Technology Law at the University of Illinois College of Law, will be joining me in blogging from the long tail here at Voiceless.

Jay is one of the nation’s preeminent scholars in patent, software and cyberspace law, and I am delighted that readers of this blog will have an opportunity to benefit from his insights as I have. With doctoral and master’s degrees in electrical and computer engineering, Jay shares my appreciation of the relevance of scientific methods and values in jurisprudence and legal scholarship, as well as an affinity for burnt orange and white. Welcome, Jay!

Rich Fantasy, Poor Culture

Posted by andrew on August 18th, 2006

I've always been a little uneasy about fanfic -- not out of solicitude for the intellectual property rights of the producers of Star Trek and The X-Files (for a fair use analysis, see Rebecca Tushnet) -- but because the mainstream media already has an unfair structural advantage in the marketplace of ideas.  Why should so much writing talent and creative energy redound to the fame of already famous characters, settings, and situations?  As cultural common denominators, Spock and Scully might help obscure writers find a ready-made audience, but at a high price for our society in the skewing of our cultural production.  Just as superficial friends can be found endlessly rehashing episodes of South Park and Family Guy in what today passes for conversation, the rise of fanfic bespeaks a decline in community life and a loss of shared, meaningful experiences in the postmodern age.

Fantasy sports leagues are no less problematic.  Professional athletes already have a massive influence on American culture, with tragic consequences for some of its most faithful consumers (Stephon Marbury excluded).  Competing over their statistical performances, remixed into a season-long narrative of all-star games, validates and reifies their cultural power.

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Greetings from Berkeley

Posted by andrew on August 11th, 2006

Below the fold are a few photos from the Intellectual Property Scholars Conference at UC-Berkeley's Boalt Hall School of Law, which ended today. I just presented my work in progress, "Antitrust in the Age of Virtualization: A First Principles Approach"; you can read a very preliminary draft here.

Special thanks to Pam Samuelson, Louise Lee, David Grady and Alissa Centivany for their amazing efforts in hosting and organizing, and to countless colleagues for many stimulating and encouraging conversations. Even with the airports on Beverage Alert, it was well worth the long trip!

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Why the Lieberman Campaign is Voiceless Today

Posted by andrew on August 8th, 2006

Do the unique characteristics of the Web call for a medium-specific First Amendment doctrine? I've been saying yes to this question since 1996. One reason is that the Web's unidirectional hyperlinks tend to privilege mainstream over marginal speakers. Another doctrinally salient feature of the Web is well illustrated by today's apparent denial-of-service attack against Senate candidate Joe Lieberman's campaign Web site on the day of his primary election against Ned Lamont. Is there any other medium for political discourse in which it is possible to silence a speaker by receiving their message excessively, against their will?

Where's the Political Spam?

Posted by andrew on August 6th, 2006

Spam can be a trailing indicator of voicelessness, a sign that alternative avenues of speech on the Internet are so far foreclosed that speakers choose instead to accept the opprobrium and legal liability risks that will attach to their generally unwanted and unread messages.  Given the points I have made on this blog and elsewhere, though, there seems to be far less political spam on the Internet, and particularly on the Web and in the blogosphere, than one might expect. 

First, the numbers.  Brightmail, a leading anti-spam software vendor, used to publish a monthly report on the prevalence of spam emails, including a detailed breakdown by category of the emails' content.  Brightmail apparently discontinued the report in July 2004, around the time they were acquired by anti-virus software vendor Symantec, but their reports live on, thanks to the Internet Archive Wayback Machine.  The table below summarizes a few representative months:

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Crowley on Gene Patents

Posted by andrew on August 2nd, 2006
Michael Crowley

From Michael Crowley's column in the August 2006 Reader's Digest, some well-intentioned misinformation about gene patents:

It may sound bizarre, but it's true: A company can actually "own" human genes. That's the brave new world of gene patents, where big biotech firms are claiming rights to our genetic blueprints and guarding them with teams of lawyers....

A gene patent does not confer "ownership" over human genes or any other substance.  It confers a right to exclude others from making, using, selling, offering to sell, and importing whatever is claimed in the patent.

Gene patents aren't remotely a "brave new world" by the standards of the modern news cycle.  The Supreme Court's Chakrabarty decision, which opened the door to biotech patents, was issued in 1980, and DNA patents were on the scene by 1982.

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Reprints Available

Posted by andrew on August 1st, 2006

I have a goodly supply of publishers' reprints of each of the four articles listed as "Andrew's Recent Publications" in the sidebar of the home page. If you'd like copies of any or all of them, all you have to do is send me your mailing address.

A Woman's Place is in the Blogosphere

Posted by andrew on August 1st, 2006

More on yesterday's post, from Sunday's Argus (Calif.) Daily Review: another take on the unfair distribution of the blogosphere:

The developers of blogging software, mostly men, didn't make it easy for newcomers to break into the tightknit network of popular bloggers at first. "They built the technology for themselves and linked to each other," [ co-founder Jory] des Jardins said.

If the upper echelon of the blogosphere has a measuring stick, it's the Technorati Top 100. The San Francisco-based blog search engine tracks the number of incoming links to a blog and ranks it accordingly. The BlogHer site itself has been linked to by 1,856 different blogs, placing it at 301 in the rankings.

Currently, the Top 100 includes only 12 blogs with a woman as the primary author. BlogHer panelist Arianna Huffington's site, which posts entries on political topics written by dozens of bloggers, ranks eighth, while conservative commentator Michelle Malkin comes in 13th.

Men occupy about two-thirds of the Top 100.

But if the blogosphere is supposed to be a meritocracy, where the most interesting people gain influence and popularity on their way to the top, then why has it been especially difficult for women to get their fair share of attention?

"I think a lot of the people who got in early are traditional early adopters — white men interested in technology," said Amanda Lenhart, senior research specialist for the Pew Internet & American Life Project.

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:: Next Page >>

An examination of the legal and technological structures that keep almost all of us voiceless, by Prof. Andrew Chin (who?) at the University of North Carolina School of Law and Prof. Jay Kesan at the University of Illinois College of Law

voiceless is a new blog. If you like what you've seen so far, please consider making voiceless a little less voiceless by adding a link to it from your blogroll!

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