IDEA Volume 63 Blog

Friday, December 2, 2022

In this blog, we want to showcase our Associate Editors’ notes and recognize their hard work throughout the drafting process.  We encourage all of you to attend the annual Student Note Symposium in April 2023, more details to come. At this event, you can hear a short presentation from each Associate Editor and talk with them about their research and the nuances of each area.  You can also learn about IDEA and the UNH Law Review. Thank you and enjoy!

Non-Fungible Tokens and the Digital First Sale Doctrine

By Ella McElwaine, Class of 2024

In 2001, in a report on the Digital Millennium Copyright Act Section 104, the Copyright Office commented on the creation of a digital first sale doctrine that the time may come when Congress may wish to address these concerns should they materialize. The emergence of blockchain technology raises new questions in copyright law and whether, as predicted by the Copyright Office, the time has now come for Congress to address the creation of a digital first-sale doctrine. The digital goods exception was created in Capitol Records LLC v. ReDigi Inc, where the US court of appeals considered whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. Ultimately, the court found that under the Copyright Act the download of digital music constitutes reproduction. Therefore, the first sale doctrine did not apply because digital music is transferred via reproduction. Consequently, the first sale defense has been consistently found to be limited to material items, rather than intangible goods, such as digital goods.

Blockchain and non-fungible tokens (NFTs) bring up novel questions under copyright’s first sale doctrine. The court in ReDigi created the digital goods exception out of a double spending concern that people could sell a digital good an infinite number of times and still retain a copy, which is impossible with the resale of a material good. NFTs do not create the double spending issue that many other digital technologies create. A NFT acts as a digital identifier that represents a digital or physical asset. The blockchain acts as a ledger to verify, store, and track the NFT. Because NFTs are in the blockchain they cannot be copied like other digital goods because a record of ownership is stored. Moreover, blockchain technology also ensures that the digital asset is transferred in its entirety.

In this article, I will explore whether a digital sale first doctrine should be created to account for emerging technology and the development of the blockchain. Moreover, the digital goods first sale doctrine could be created to adhere to the goals of the first sale doctrine by considering the rivalrous nature of the blockchain. Smart contracts are the current solution to the digital goods exception to the first sale doctrine. Thus, this paper will discuss the current use of Smart Contracts and how they are an imperfect solution to the digital goods exception. 

The Recycling of Plastic Packaging Material: An Intellectual Property Issue?

By Matthew Arsenault, Class of 2024

Currently, there are no effective means for the large-scale recycling of plastic packaging materials such as plastic films and foams. From a technical standpoint, films and foams have an extremely low bulk density, making them a low-profit material for recycling. At recycling facilities, they pose various issues, from contamination to interfering with machinery. Present options for recycling these materials require special facilities requiring the consumer to bring these materials to specific drop-off locations. Other small-scale facilities have arisen as the desire to improve the sustainability and recyclability of materials has grown to an all-time high.

From an intellectual property perspective, it is necessary to determine what must occur to aid in recycling these materials. Despite the negative connotations surrounding plastic materials, they are incredibly beneficial, cost-effective, and environmentally friendly when handled appropriately. 

As there seems to be no definitive solution for this problem, large and small-scale recycling facilities will communicate to determine the most significant legal issues surrounding recycling these materials. It is unclear if it is a simple issue of licensing patented technology, the retrofitting of current facilities that would be required to implement new technology, or simply that the materials are cost-prohibitive for recycling. Recycling facilities, on the surface, appear to be used only to benefit the environment; however, they are business entities working to create a profit.

Inventors filed over 2000 patents for plastic recycling last year, eight times more than in 2016. Despite these efforts, progress in this area is seemingly at a standstill. This Note will first look at current technologies used in the recycling industry and technology implemented by smaller-scale facilities. Next, this Note will look at global efforts surrounding the legal issues of recycling and provide a comparison to what the United States is doing. Finally, this Note will provide suggestions for an effective method, as a matter of law, to improve the recycling rates of these traditionally hard-to-recycle materials. 

The Exhaustion Doctrine Applied to Self-Replicating Technologies

By Matthew Kelly, Class of 2024

The exhaustion doctrine, or doctrine of first sale, is a common law doctrine in patent law in which a patentee exhausts their rights in a particular copy of their invention upon the first authorized sale of that copy. When the copy of the invention is sold, the patentee no longer has any interest in that copy, and the buyer is free to make, use, practice, or sell that copy without infringing upon the patent.

The Supreme Court held in Bowman v. Monsanto that the exhaustion doctrine does not apply to future generations of genetically modified seeds that would not have replicated without human interference, but the Court did not extend this holding to all self-replicating technologies. It remains unclear if the exhaustion doctrine applies to self-replicating technologies when the replication is an incidental step in a non-infringing use, when the replication is accidental, or when the technology is capable of replicating without human interference.

While the exhaustion doctrine is not fully applicable to self-replicating technologies when human interference is required to facilitate the replication, failing to apply the doctrine to technologies where replication happens without user intervention could present challenges. If the technology replicates without the interference of the user, should the user still be found to be infringing? What if the user does not know the replication? The exhaustion doctrine found in Bowman cannot be applied to these technologies because the Bowman court relied on the fact that the seeds at issue were being intentionally replicated.

This note will examine different approaches to applying the exhaustion doctrine to self-replicating technologies in scenarios not covered by the court in Bowman.

The "Heightened" Written Description Requirement for Pharmaceutical and Biotechnology Patents

By Trevor Wilkinson, Class of 2024

The pharmaceutical industry is often viewed as the golden child of the patent system and as an example of the patent system at its best. Hundreds of millions of dollars and years of work are poured into the research, development, and FDA approval of a new drug. As compensation for this large investment, companies are given exclusive rights to that drug for a limited term to recoup their costs. Since drugs tend to have a profound impact on society, it is exactly the type of invention that the patent system should seek to reward. However, recent shifts in the Federal Circuit’s written description case law may leave the industry vulnerable.

35 U.S.C. § 112 requires the patentee to provide a written description of the invention, showing that the inventor had possession of the invention at the time of filing. As a requirement to obtain a patent, it has not imposed a huge problem. As Chief Judge Michel stated during en banc oral arguments in Ariad, “it's exceedingly rare that the patent office hangs its case on written description.” However, the issue arises during litigation after the issuance of the patent, where the Federal Circuit has seemingly applied a “heightened” written description requirement to issued patents in the pharmaceutical and biotechnology industries. This shift has been subtle in recent years, and since written description is discussed less frequently than other patentability requirements, like patentable subject matter or enablement, it is an issue that should be brought to attention even though practitioners may not be aware of it.

I will argue that the written description requirement as applied to pharmaceuticals and biotechnology should be loosened from its current heightened state. My note will describe how the written description requirement has developed over time both generally and specifically for pharmaceutical and biotechnology patents, and then it will lay out why the standard needs to be less restrictive and what the implications of a less restrictive standard would be. The pharmaceutical and biotechnology industries are two of the most beneficial industries to society, and a heightened written description standard could do more harm than good, especially if it disincentivizes these companies from putting forth the investment necessary to develop these inventions.

The TEACH Act in K-12 Schools: Is it Still Good Law?

By Andrea Pelloquin, Class of 2024

Remote learning has become increasingly popular over the past twenty years, and even more so since the pandemic. The Technology, Education, and Copyright Harmonization (TEACH) Act was passed in 2002 to allow copyright law to be more flexible for those using protected works via distance learning. The exception for educational use was expanded for the end-users, but also included additional requirements to protect the copyright owners in the digital space. Many users felt the additional requirements for using works under the TEACH Act were too cumbersome and relied on fair use to cover their content use instead. The TEACH Act was meant to improve access to distance learning materials, but it was controversial from the start. 

That was twenty years (and one pandemic) ago. Is this law still relevant for today’s needs? So much has changed with both technological advances and how education is presented in today’s schools. This note focuses on educators at the elementary and secondary (K-12) levels and asks if teachers are getting what they need from the support that TEACH is supposed to offer. If not, how can the statute be amended to better fit today’s educational needs, while still protecting the rights of content creators? There is very little research done on the K-12 market, and this note begins to remedy that.

Pornography in Copyright Law

By Sommer Skeps, Class of 2024

In the 1970s, a social movement promoting sexual liberation started conversations about sex and pornography in the United States. With the increase in the popularity of pornography, the pornography industry’s value boomed, and courts began to consider whether the subject was copyrightable. In 1979, the Fifth Circuit validated copyright for pornography in Mitchell Brothers Film Group v. Cinema Adult Theater. They noted that even obscene writings should be considered for protection under copyright law because the Copyright Act states “all the writings of an author” shall be able to obtain a copyright. Almost 20 years later, in 1998, the District Court for the Southern District of New York disagreed in Devils Films, Inc. v. Nectar Video Corp., holding that because pornography is obscene and therefore illegal, the unclean hands doctrine should apply.

Today, courts tend to rely on these decisions to avoid speaking in depth about pornography. For example, in Next Phase Distribution, Inc. v. John Does 1-27 the court says: “Although the Court recognizes that the case law is unsettled regarding whether pornography may legitimately be copyrighted, for the limited purpose of this Motion for Discovery, the fact that Next Phase is the registered copyright owner of the Motion Picture satisfies the requirement of a prima facie showing of copyrighted infringement.” Some courts agree that pornography is copyrightable but admit it is obscene. They state that the uniformity of copyright is important to uphold and ruling pornography as uncopyrightable would destroy that uniformity. Many other courts seem to agree that pornography should be copyrightable and state that the artistic or literary value outweighs the obscenity. No matter what the courts think, they avoid discussing what that artistic and literary value actually is and decline to discuss any benefits or detriments it may have.

The internet has only increased the value of pornography. Currently, pornography in the US is a $10-12 billion industry. This increase in value and accessibility has created new areas for courts to consider. VR pornography and social pornography like OnlyFans have become popular. Courts have begun to consider whether these new developments in pornography should be copyrightable. This note will go through arguments for copyright protectability of those new areas and will end with a conversation about the Copyright Claims Board, a relatively new option that provides a streamlined alternative to federal court.

The UPC: Will the Court Solve Europe’s Patent Litigation Problems?

By Riley Wyberg, Class of 2024

On April 1, 2023, the Unified Patent Court (UPC) is finally scheduled to open. The UPC is a centralized court that will have the authority to handle infringement and invalidity proceedings regarding European Patents. Currently, in Europe, there is no unified body with the jurisdictional authority to enforce a European Patent across multiple countries. As such, if a European Patent holder wants to enforce their patent across multiple nations, they would need to bring individual lawsuits at the relevant authority in each nation they allege infringement occurred in making patent litigation in Europe quite an expensive venture.

In the abstract, a centralized body, like the UPC, is the ideal solution to this issue because it would allow a European patent holder to enforce their patent rights across multiple nations in a single action. However, a whole host of European nations including the United Kingdom, Spain, and Turkey have decided to not participate in the UPC. Thus, it cannot be said that the UPC fully solves the patent litigation issue in Europe, as a patent holder will still be required to bring multiple actions if they desire to enforce their patent rights in European countries outside of the UPC’s jurisdiction. Additionally, the introduction of the UPC will introduce a host of risks and issues for European Patent holders, including uniform invalidation risk, high filing fees, limited attorney fee recovery, and overall procedural and doctrinal uncertainty.

This article will examine the likely issues that will exist with the creation of the UPC to predict whether it will fix the issues it is designed to remedy or whether it will introduce a host of risks and problems that will make it an unattractive venue for European Patent holders.

Imaging Machines and Patent Eligibility

By Mitchell Gross, Class of 2024

The Alice/Mayo framework has left the world of patent law in a large grey area, specifically when it comes to finding whether future devices are either abstract ideas, natural phenomena, or laws of nature. For MRI machines, CT machines, and BCI systems, the major question is whether each imaging system violates 35 U.S.C. § 101. More specifically, the question is whether each system is an abstract idea and whether there is a significant enough “inventive step” under the Alice/Mayo framework to determine patent eligibility.

For years, the USPTO and District Court have had a slight disconnect on what exactly “abstract ideas” exactly means. This is due to the Supreme Court’s lack of elaboration on the term, specifically in cases Bilski v. Kappos, Mayo Collaborative Servs. v. Prometheus Labs, and Alice Corp. Pty. Ltd. v. CLS Bank Int’l. With no specified standard from the Federal Circuit or the Supreme Court on how to correctly interpret those cases, lower courts and the USPTO have ended up rejecting a significantly higher portion of patents on § 101 than before and through inconsistent means as well.

MRI machines most likely fall into the category of abstract ideas. However, MRI machines go far beyond the typical concept of abstract ideas, and their vital use in the medical world is proof that classifying them as abstract ideas would undermine the very foundation of patent law. Furthermore, MRI machines, if deemed to be abstract ideas, are complex enough to have the inventive step necessary to be patent eligible.

CT machines have a similar outlook to MRI machines, where they would most likely be considered abstract ideas, assuming it is patent ineligible under § 101, and that it goes far beyond the typical idea of either an abstract idea or an inventive step. However, the same cannot be said for BCI systems. BCI systems work by acquiring brain signals, analyzing them, and translating those signals to pre-determined commands before relaying those commands to an output device. Because of this, they might be abstract ideas since brain signals and using such signals could be an equivalent of human mental work under Gottschalk v. Benson. However, BCI systems go far beyond the equivalent of human mental work since a BCI system is not only about human thoughts, but also about processing such thoughts to perform a specified action without the need for any other input. This could have extraordinary medical implications in the next 20 years.

This note examines the Alice / Mayo framework and how it applies that framework to MRI machines, CT machines, and BCI systems to analyze their respective patent eligibility under § 101.

Instituting a Small Claims Patent Court

By Robert Bronchick, Class of 2024

A major issue in patent litigation is ensuring that all patent rights holders have access to fair and proper methods of upholding these rights. Currently, the traditional form of patent litigation, lawsuits at the federal district court level, create an arduous burden on individuals or businesses with a relatively small patent portfolio. Patent litigation cases can take years and cost tens of millions of dollars to reach a final judgment. For many of these small patent portfolio owners, this means that a lawsuit for a couple hundred thousand dollars in damages will equate to pennies after judgment due to litigation costs.

One way of addressing this issue is to implement a Small Claims Patent Court at the federal district court level. The purpose of this court would be to provide a specialized system for adjudicating patent-based claims that are within a certain range of total damages. As part of its implementation, the court would have different standing and forum requirements such as damages total, size of the plaintiff, and types of claims. Additionally, the judge, or judges, would be like the administrative patent judges at the Patent Trial and Appeal Board. This will allow for shorter discovery times and greater ease of adjudicating as the judges will have a better understanding of the technology at issue in the claims. Consequently, these rules and procedures will help to expedite a fair trial with incentives for both plaintiffs and defendants to adjudicate their cases in this court.

By instituting a Small Claims Patent Court, Congress can eliminate many of the barriers that keep patentees from protecting their property rights. For many small business owners or individuals with small patent portfolios, this is a necessity. Just like any other constitutional right, the court system should provide an avenue for upholding patent rights, no matter how small. Its institution will lead not only to greater fairness in patent litigation, but it will also spur innovation as start-ups and individuals will feel more secure in the protection of their inventions.

When Machine Becomes Man Where Should the Line of Inventorship be Drawn?

By Joshua Hudon, Class of 2024

In recent years, Artificial Intelligence (AI) has been very influential in mankind’s innovation of new technologies. AI, according to the Oxford Dictionary, is “the theory and development of computer systems able to perform tasks that normally require human intelligence.” However, more recently, AI has become more involved in creating novel ideas instead of being a tool for human inventors. AI has yet to become self-sufficient, as algorithms used in AI usually involve human intervention, but it is believed that AI will become self-sufficient and will not need human intervention when it comes to inventing new technology. But if AI is the sole inventor, will it be able to claim the patent for the said invention? This question was addressed in the DABUS decision as the Supreme Court made it clear that AI cannot be an inventor of a patent because of the laws stating that an inventor must be a “natural person.”  

What’s next for AI and inventorship? Based on the DABUS decision, it is hard to see AI ever getting the right to the inventorship of a patent, but it is not impossible. There are scenarios which will bring back this question. It is not uncommon for definitions to change both legally and societally. Further, will society have a philosophical shift of what a “natural person” is? What will happen when AI integrates further into human physiology—is it less than a natural human? Are there limits to AI that we can put in place that will make AI more human than machine? 

In my article, I will be answering these questions by 1) exploring questions to help unravel the term “natural person” in its philosophical, social, legal, and how they are interconnected; 2) evaluating if the term “natural person” shifts when more technology is involved in the human body to the point where someone becomes more machine than man; 3) discussing the improvements and concerns in AI technology and its numerous capabilities in innovation; and 4) finding the middle ground, by establishing set criteria, that will enable AI to become an inventor.  

Sampling Sound Recordings: Should Courts Allow De Minimus as a Defense?

By Emmeline Drake, Class of 2024

Is sampling a musical composition copyright infringement? Some artists sample other musical compositions and manipulate the recording to include them within their work to transform it within the context of a new musical work. However, copyright owners whose work has been sampled without a license have brought claims of copyright infringement. The Sixth and Ninth Circuit Courts in the United States are split on whether to allow the sampling party to use the de minimus defense to claims of copyright infringement.

The Sixth Circuit found in Bridgeport Music, Inc. v. Dimension Films that the de minimus defense cannot be applied in claims of copyright infringement for sound recordings. In this case, two seconds of the plaintiff’s song “Get Off” was sampled by the defendants. While the defendants used these two seconds in their song “100 Miles,” the defendants lowered the pitch of the recording and looped those two seconds in including it in their song. The defendants claimed that this use is de minimus as it was only two seconds of a longer work. The Sixth Circuit held that this defense cannot be raised for sound recordings, as the sound recording itself is a tangible medium for music and therefore sampling is a physical taking of the plaintiff’s work.

The Ninth Circuit took a different approach in the case VMG Salsoul, LLC v. Ciccone. In VMG, Salsoul, the defendants sampled certain horn hits from the song “Vogue.” The defendants transposed and added reverb and delay to these sampled horn hits to fit them better in the defendant’s work. The Ninth Circuit held that the defendants could use de minimus as a defense. According to the Ninth Circuit’s statutory interpretation of §§ 102 and 106, there is no difference between sound recordings and other copyrighted material, and as such, this defense should apply to claims of infringement for all copyrighted works.

Pharmaceutical Drug Discovery and Patent Law: How Can Artificial Intelligence Use Be Properly Incentivized?

By David Glass, Class of 2024

Artificial intelligence (AI) is a tool with increasing utilization in many different industries that impact our daily lives. As society’s technical knowledge and capabilities have continued to increase year after year, AI has found itself at the center of much modernization within companies. Pharmaceutical drug discovery and development efforts use AI to greatly reduce the amount of time it takes to identify potential lead compounds that could lead new medicine to the market.

The use of AI within drug discovery and development has particular importance, as medicine is a necessity in today’s modern world. However, many of the pharmaceutical entities competing in drug discovery and development are corporate companies. As such, corporate governance requires that corporations act to maximize residual, which is a pro-rata right given to shareholders. These corporations need to make decisions considering what will maximize the residual for the shareholders. These companies will not invest in AI use within drug discovery solely for the benefit of humanity, as the decision to invest for human benefit goes against a corporation’s prime directive.

In understanding a corporation’s purpose, there is a certain tension that exists. AI use in drug discovery can provide massive social benefits to a large portion of humanity, but businesses need to be incentivized economically to pursue these options. Patent law is traditionally one way to incentive businesses to create and discover, as it provides the right to exclude others from making, using, or selling the patented product while allowing the patent holder to get a return on their innovation. However, when it comes to AI and patent law, there are several issues. The utility requirement is one such issue for patenting AI use in drug discovery and development. Under 35 U.S.C. § 101, an invention needs to be new and useful to be a patentable subject matter. To be useful, an applicant’s invention must identify the substantial and practical utility.

This note topic will argue that AI use in drug discovery and development should be incentivized through patent law to help to provide a massive societal benefit. I will first determine if AI use in this context is able to satisfy the current utility requirement. However, even if it cannot, I will argue for change/re-interpretation of the utility requirement that would allow for this important use to be properly incentivized for corporations going forward.