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he bible should have more influence only about 3 of pew respondents endorsed all 4 propositions lighter version about ½ of americans say laws should be influenced by christian morals what would this mean for ip depends on the kind of xianity looked at biblical principles important in theories of property imago dei genesis let us make man in our image after our likeness g d is a creator so that s an area of overlap dominion mandate humans have dominion over all the earth caretakers stewards of creation in ways different from other animals private property exodus thou shalt not steal dominion mandate is consonant w private ownership property rights viewed as necessary for human flourishing and social stability humans are bad and selfish so private property provides a structure to control our worst natures the bible supports giving people the fruits of their labor whether wages or property rights examples start from that foundation and yet come to pretty different conclusions ruth okediji is the public domain just v james edwards to invent is divine okediji private property is in tension w though not irreconcilable with stewardship need conception of what it means to be human to shape sustainable conditions for flourishing life edwards mass flourishing coincides w private property rights ip rights okediji says that optimal production of knowledge goods is important but so is optimal consumption stewardship includes private rights and service to others edwards private ownership is what you need leaves service to others outside bounds of legal duties okediji need ongoing assessment of ip law including traditional knowledge edwards founders were right should broaden patentable subject matter make injunctions easier to grant affirm that patents are private property not government grants takeaway xianity doesn t get you to a 20 year patent term or automatic injunctions so be careful what would xian ip look like you can imagine limiting protections for obscene pornographic and potentially blasphemous content though they also profess respect for the first amendment false witness you could imagine strengthening attribution rights patents reintroduce strengthen moral limits on patents fred yen creators inventors have unpaid debts to inventors creators before them what does that mean for their rights going forward rosenblatt were our laws written by xian nationalists to start or deists tam brunetti seem to move away from this in modern rhetoric xian nationalism isn t just the xian part but also the nationalist part white nationalist national treatment seems vulnerable internationalism does seem vulnerable too which would also have implications for traditional knowledge do you care about theology or xian nationalism rt i don t see why these are xian instead of moral views w xian characteristics and i say that advisedly b c china does all these things limits patents on moral grounds bars obscenity sexual material etc we can plug in lots of moral frameworks to these propositions compare pope s recent pronouncements which do seem to make claims about what xianity requires in substantive output zahr said how much work is g d doing in this project versus self regarding system imposing majority s views musk s tech libertarianism is another possible comparator q human chimeras patents on parts of humans what perspective q could argue that injunctions should not be allowed b c you re not an owner but a vessel for g d s creation and thus shouldn t control trans patents andrew gilden with sarah r wasserman rajec inventions that cover gender affirming care or other inventions with potential for trans people patent texts can be archival how tech is viewed then as speculative visions for culture as strategic parts of sales fda approval pitches and as political vehicles for shifting social norms around taboo topics such as patents for recreational cannabis granted long before many states legalized political backlash against trans people has often focused on denying them technology so patents are relevant patents using terms that expressly recognize trans people and sex gender reassignment 372 granted patents 3 in 1980s 4 in 1990s 7 in 2000s 112 in 2010s and 246 since then even though trans people and trans affirming care have been around for a while primary focus on trans population 21 intended users 196 remainder otherwise incidental cited topics hormone therapy phalloplasty vaginoplasty breast augmentation breast concealment genital concealment clothing sexual devices other health pharma ai and data processing trans people often presented as one of many populations who benefit from claimed invention methods for treating excess androgen skin changes can help w pcos etc or there are many reasons that people bind their breasts patentees rely on studies focused on trans people bodies even if trans people aren t disclosed as target population trans cis medicine are inextricable from each other some patentees emphasize uniqueness unique needs of trans people whether anatomical or social sets up claims limited to trans people as point of novelty also nods to consumerism an underserved marketplace e g genital concealing underwear for trans women shopping recommendation system that imagines trans women looking for shoes so far no noticeable drop in grants under trump 2 0 but fda warning letters to chest binder retailers distributors and manufacturers some recipients of the letters had granted patents state and marketplace are vying for control over transgender existences control over gender expression property rights can be tied to gender identity infringement could require jury to find that user is a trans male disconnect b t patenting and commercialization patentees who offer various treatments to cisgender population but have patents for trans populations patent activity maps poorly onto history of innovation in transgender medicine but may reflect perceived social change or help measure cultural anxiety patenting activity closely matches rise in mainstream awareness fear backlash rhetoric mirrors that in other areas of law politics opponents fear experimental off label gender affirming care equal protection arguments about state denying trans people access to care available to everyone else due process arguments about need for access to gender affirming care said what about coded references e g medical codes can be changed by sympathetic doctors there might not be explicit acknowledgement a yes we are tracking a bubbling to the surface rothman look for patents in the same spaces that don t use the magic words a scandinavia would be a place to look there rosenblatt can this tell us anything about trans self help and user innovation medicalization is partially good but also has big downsides the value and values of patent ideology tejas narechania one view there s a perfect number of patents that s just right his view there s no pure vision of patent law there are multitudes that are incommensurable irreducible to utils these are necessary and desirable outgrowth of living in a free plural society founders innovation national security morality or even natural rights distributional concerns all the policy considerations were there at the beginning the state law of federal patent enforcement paul r gugliuzza state bad faith statutes motivated by mass demand letter campaigns by bottom feeder trolls against end users effect reduce cost asymmetry b t accused infringers and npes permit finding bad faith based on inadequate info lack of investigation false misleading statements unreasonable deadlines settlement demands some laws apply only to suits against end users or by npes key issues that have repeatedly arisen who can sue and where personal jurisdiction via demand letters federal subject matter jurisdiction over state created claim one of these cases has finally reached the fed cir should courts imply a private right of action where the state laws aren t explicit otherwise it s left to state ags with resource collective action constraints what conduct is regulated core version is bad faith assertion but courts have disagreed over what constitutes an assertion or demand letter analogy to declaratory judgment standing courts also differ on what will ultimately establish bad faith is including a claim chart evidence of good faith or should the court examine the claim chart for misleadingness correctiness the preemption overlay objective baselessness as a prerequisite according to the fed cir bad faith is not enough if it s just subjective and the underlying infringement theory was not objectively baseless resembles the fed cir s tests for willful infringement and attorneys fees overturned by the supreme court so should this test survive remedies actual damages from assertion statutory damages attorneys fees for the bad faith litigation against anyone involved in the assertion and bonds what about anti abuse measures for assertion of the statutes used abusively reverse fee shifting doesn t like categorical exemptions based on patent asserter identity geographic gaps california and other states don t have these posted by rebecca tushnet at 3 59 pm no comments email this blogthis share to x share to facebook share to pinterest labels conferences copyright patent ipsc breakout session 4 design trademark ip boundaries backdoor trade dress rachael dickson strange things are afoot at the pto applications for line drawings of specific products they are not configuration marks for the product design they re just design marks in addition to the usual tm registration requirements configuration marks raise two concerns functionality and what level of distinctiveness is required product design requires acquired distinctiveness and pto usually requires significant evidence to allow a registration for product design not relying on 5 years of exclusive use some have received failure to function refusals a drawing of ear loops mark drawing is filed in form style customary for configuration marks consumers not used to it also refused on 2 d grounds b c loop has a registration for the configuration as well as a design patent backdoor trade dress risks skating past pto w o showing acquired distinctiveness or nonfunctionality description doesn t include limitations ra easily found 100 examples estimate of 100s more common issues descriptiveness failure to function 2 d if the maker has a configuration mark but also regularly approved for publication registration found 39 already registered overall pto doesn t have a clear reason to refuse these types of applications there s no we suspect you re going to do sketchy things w this refusal backdoor trade dress application types 1 designs identical to at least 1 goods listed 2 related to goods listed 3 designs unrelated to goods listed 1 should get a descriptiveness refusal lots of marks clearly taken from images online app for projection screens taken from an amazon product listing another with a toy caterpillar for children s toys 2 e g a drawing of a nonstick pan for oven mitts lavalier mike for guitars 3 water fountain for toys why possibly takedowns reg now cancelled used to file infringement notice on amazon against magnetic hooks sold by another party smukmagnet smukmagnet has a design patent though and so it filed a cancellation manufacturers do think this is what s happening ttab opposition on a soccer ball shaped light another example of a design for a child s tablet almost all the applications are from china amazon doesn t do any scrutiny can design marks be legitimate maybe for identical related designs but is this a tm function instead of ornamentation or indicating what the product is of course there are product design marks that sort of resemble other objects the taco bell bell etc but those aren t line drawings problems obtain trade dress style protections on online platforms w o having to meet trade dress requirements allows monopolization over functional elements or nonfunctional elements owned by others what next mark mckenna is this an actual competitive problem this depends on whether they re being used to assert rights what we know so far suggests this might be the tip of an iceberg also the gameability of the pto process configuration mark based 2 d refusals is implicitly suggesting that design marks are enforceable against configuration marks and vice versa which might be the wrong message the drawing of the product shouldn t cover the configuration of the product but also vice versa though the necessity of secondary meaning for the product configuration might provide an important constraint there sarah burstein can we make them disclose that they re not configuration marks a already a lot of boxes to check some of the apps already say this is not a configuration mark pto doesn t do much unless there s 1000s of applications jennifer rothman is this a trade dress problem or a pto registration problem pto registers many things that shouldn t be registered why b c they have time constraints and an orientation to help applicants succeed except for 2 d if there s no opposition it s probably going to get registered even if it shouldn t that s the bigger problem ai may make it worse what do we mean by design marks it s always challenging b c logos are design marks and trade dress is also design marks so we need clearer definitions design of versus design on a they re trying but there are new schemes every couple of years or so this is what i plan to write about the general implications of that cycling whack a mole ramsey this could be an opportunity to develop failure to function doctrine there are expressive uses decorative uses and possibly puzzling uses like this backdoor copyright sarah fackrell sct has worried about backdoor patents through or tm we should also be concerned about design patents used to get backdoor the conventional wisdom is that copyright is stronger than design patent is instantaneous design patent not cheap free low v five figures term broader but the creativity threshold for design patent is lower and there s no separability doctrine we re seeing this especially in the area of graphical user interface designs many of these would be below feist designs uspto has also engaged in expansion of subject matter in 1996s pto started accepting guis 2006 started accepting animated guis 2026 disembodied designs including projections holograms and virtual augmented reality statutory text what text statutory text new original and ornamental design for an article of manufacture not just a design a design for an article of manufacture the pto doesn t care a projected keyboard the pto says is a design for a computer b c it is produced by a computer does not compute side note it s not clear that machines are articles of manufacture what s going on 1 avoiding limits on and tm lawyers are very clear about this avoid fair use though egyptian goddess constrains scope 2 structural story a small group of ...
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