Copyright (c) 2009 All rights reserved. http://works.bepress.com/jay_dratler Recent documents in Jay Dratler en-us Sun, 31 May 2009 07:00:45 PDT 3600 http://works.bepress.com/jay_dratler/17 http://works.bepress.com/jay_dratler/17 Wed, 24 Sep 2008 13:26:28 PDT This short paper examines the likely effect of the Court's three opinions on the actual practice of intellectual property cases in their remedial phase. The first part briefly discusses the unanimous opinion and its likely economic effect in increasing the already daunting complexity-and therefore the already considerable cost-of intellectual property litigation. The second part examines the first concurring opinion and the effect of its implicit suggestion that nothing much has really changed. The third part examines the possible practical effect of the second concurring opinion. The conclusion then offers a few general observations on where remedial practice in patent cases might go from here. Jay Dratler http://works.bepress.com/jay_dratler/16 http://works.bepress.com/jay_dratler/16 Sun, 22 Jun 2008 17:09:58 PDT This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a "teachable moment" and obscuring the great issues at stake in prolixity and mind-numbing technical detail.In this article, I applaud the Boumediene v. Bush Court not only for its result--that the Constitution's Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances--but for its reasoning and style as well. This time, the majority of five did not miss its "teachable moment," but placed its decision squarely on the bedrock of Anglo-American rule of law, going back to the Magna Carta. I outline how the majority did so. I also analyze how the dissenters misapplied the key precedent of Johnson v. Eisentrager, ignoring enormous factual distinctions. Finally, I analyze how the dissenters belittled the majority's real deference to the executive and wrongfully accused the majority of a judicial activism that better characterized their own approach. In the footnotes, I analyze what guidance the Court provided on three factual issues underlying application of the Suspension Clause: (1) when it applies; (2) when it has been invoked; and (3) when an alternative to habeas corpus is an adequate substitute for it. I conclude that the Court provided significant general guidance only on issue (1). Jay Dratler Constitutional Law http://works.bepress.com/jay_dratler/15 http://works.bepress.com/jay_dratler/15 Wed, 12 Mar 2008 13:28:00 PDT Resulting in part from the lack of effective incentives for innovation, the rate of innovation in American technology has declined in recent years. In this Note, Mr. Dratler contends that the current patent laws fail to provide effective incentives to inventors, most of whom work for large corporate or government employers, because the laws allow employers to require employee-inventors to assign all potential inventions to their employers. Moreover, incentives for supervisors and middle-level managers, whose support is critical in the process of innovation, do not exist.To provide the needed incentives, Mr. Dratler propose that the patent laws be revised to divide ownership of patent rights in an invention between inventor and employer, according to how much "extraordinary'" effort each has invested in the innovative process. Such division would be accomplished through private bargaining between inventor and employer, with arbitration in cases of impasse. Jay Dratler Patents http://works.bepress.com/jay_dratler/14 http://works.bepress.com/jay_dratler/14 Wed, 12 Mar 2008 13:10:10 PDT This article analyzes the state of the law protecting intellectual property rights in computer software, discusses current business practices used in attempting to deal with that body of law, and proposes legislative solutions to facilitate commerce in software. Although there are aspects of copyright law that impede fluid com- merce in software, notably the first-sale doctrine discussed below, this article focuses primarily on the problems associated with trade secret law.The second section of this article gives an overview of protection of computer software by patents, copyrights and trade secret law. The third section discusses the significant gap in protection of software between patents and copyrights. It then discusses how trade secret law, albeit imperfectly, fills that gap. The fourth section discusses the traditional requirements for trade secret protection, their applicability to computer software and their inappropriateness to the software business as currently conducted.The final section proposes legislative solutions to the problem of a legal system that seems not to fit the needs of the software industry. Jay Dratler Trade Secrets http://works.bepress.com/jay_dratler/13 http://works.bepress.com/jay_dratler/13 Wed, 12 Mar 2008 13:00:29 PDT This article attempts to make the case for a balance of copyright incentives more favorable to educators. Part I introduces the dilemma faced by every educator who uses copyrighted works: the Hobson's choice between infringing others' copyrights and observing cautious legal procedure, thereby perhaps hobbling the giant strides toward excellence in education that modern information technology makes possible. Part II discusses Congress' accommodation of educators under the Copyright Act of 1976 and compares that statute with its predecessor, the Copyright Act of 1909. Focusing on educational performances and broadcasts, photocopying for the classroom, and the doctrine of "fair use," Part II explores the current law's inadequacy for educators in the information age. Part III describes in general terms a legislative solution to the educator's dilemma derived from three concepts of existing copyright law - the commercial availability of copyrighted works, the notion of a commercially "fair price," and the spontaneity of educators' use of copyrighted works. It suggests that these concepts provide a foundation for a unified, practical approach to educators' use of copyrighted works, and it analyzes how their application might fairly balance the interests of educators, students, authors, producers, publishers, and the public. Finally, Part IV proposes specific language for an amendment to the statute, with the hope that the education lobby will strike while the iron is hot. Jay Dratler Copyright http://works.bepress.com/jay_dratler/12 http://works.bepress.com/jay_dratler/12 Wed, 12 Mar 2008 12:29:17 PDT Law casebook. Jay Dratler Licensing http://works.bepress.com/jay_dratler/11 http://works.bepress.com/jay_dratler/11 Wed, 12 Mar 2008 12:15:59 PDT With updates 1 through 24. Jay Dratler Intellectual Property Law http://works.bepress.com/jay_dratler/10 http://works.bepress.com/jay_dratler/10 Wed, 12 Mar 2008 12:09:36 PDT With updates 1 through 24. Jay Dratler Licensing http://works.bepress.com/jay_dratler/9 http://works.bepress.com/jay_dratler/9 Wed, 12 Mar 2008 12:03:59 PDT Includes updates. Jay Dratler Cyberlaw http://works.bepress.com/jay_dratler/8 http://works.bepress.com/jay_dratler/8 Wed, 12 Mar 2008 11:53:39 PDT For almost 150 years, the design patent has served as the chief means of protecting industrial designs from piracy in the United States. Yet, as courts and commentators have recognized, design patents often do not afford commercially practicable protection. During the last seventy years, the patent bar has tried repeatedly to convince Congress to provide more practicable protection, usually through registration of industrial designs in a manner akin to copyright registration. Three bills for design registration were introduced in the 100th Congress, of which one was the subject of a hearing in 1987, and a bill has been introduced in the 101st Congress. So far all this legislative effort has accomplished nothing, and, as a result, the field of industrial design remains bereft of useful legal protection against piracy.Two trends, however, may change this sorry state of affairs. First, American business is focusing increasing attention on industrial design. Manufacturers are realizing that good industrial design is an important ingredient in their products' success and a vital factor in industrial competitiveness in both domestic and international markets. Second, steady expansion of the scope of trademark protection under the federal trademark statute has pushed into the realm of industrial design. Federal judicial decisions now provide substantial protection of product designs and packaging, and these decisions are part of the mainstream of American trademark law. As awareness of the importance of industrial design spreads, this trend is likely to continue.The stage is thus set for protecting industrial designs under trademark law. Ultimately, Congress may adopt a system of registration under copyright principles, as designers have been requesting for so long. However, the 100th Congress's response to the bills for this purpose can best be described as desultory. More important, theory and policy suggest that copyright principles may not provide the best legislative paradigm for protecting industrial designs, while trademark principles may be more appropriate for the task. If this view is correct, Congress may never adopt the legislation so long sought by American designers, and trademark law, by default, may continue to be their best refuge.This article attempts both to make the case for trademark protection of industrial designs and to analyze how that protection should work in practice. Part II reviews the well-known inadequacies of patent law and the way the current copyright statute generally excludes protection for industrial designs. It then outlines some necessary fundamentals of trademark law and suggests that protecting industrial designs under copyright principles might have serious deficiencies in theory and policy, while protection under trademark principles might be more appropriate.Part III reviews the Sears/Compco decisions, in which the Supreme Court ruled that federal patent law preempts state trademark protection as applied to industrial designs, and describes how the development of federal trademark law and its application to industrial designs has bypassed those decisions. Part III next suggests that the pro-competitive policy underlying Sears/Compco should apply also to federal trademark doctrine as a matter of statutory interpretation, even though the decisions themselves do not govern federal trademark law. After analyzing the tension between patent and trademark protection of industrial designs, however, Part III concludes that patent policy does not require denying protection to industrial designs in general. Instead, it shows how courts adjudicating trademark infringement disputes may reconcile trademark protection for unpatented industrial designs with patent policy by applying trademark doctrine with an eye to that policy and carefully calibrating trademark remedies.Assuming, then, that neither patent policy nor statutory interpretation precludes trademark protection for industrial designs, Part IV discusses how trademark protection should work in practice. Part IV(A) considers the doctrine of functionality and its problematic cousin, aesthetic functionality. It argues that the cousin should be disowned and that courts should limit the doctrine of functionality to its pristine role-dividing the realm of ornament from the realm of utilitarian function-as several courts have ruled. It then discusses how the doctrine of functionality applies to industrial designs, which invariably blend form and function.Part IV(B) recommends a way to fill the gap left in legal theory by abandoning the doctrine of aesthetic functionality. It proposes that a well-known feature of trademark law, the doctrine of distinctiveness, fill this gap, and it describes how courts may apply the distinctiveness spectrum to industrial designs. Next, Part IV(C) discusses the difficult question whether trademark law may protect aspects of industrial designs that make one product compatible with another. Finally, Part IV(D) explores two practical issues that may arise in trademark protection for industrial designs: the use of disclaimers and the question of buyer sophistication. Jay Dratler Trademarks