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 2024, 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!
- Thaler v. Vidal's Impact on Patent Protections of Autonomous Al-Enabled Orbital Commercial Satellites by Julia Burke
- 20 Years? How Embarrassing! Has Patent Law Lost the Plot Regarding Patent Term? by Colin Dean
- Knocking Out Noncompetes by Jenafer Evans
- The Inflation Reduction Act, Rising Healthcare Costs, & The "Patent Cliff" of Pharmaceuticals by Dalton Ford
- Bye-Bye Birdie: Evaluating Residual Goodwill in Twitter's Famous Trademarks by Eric Gardner
- Regulatory Pricing Limits and the Value of Intellectual Property by Andrea Hemberger
- The Tension Between Ornamentation in Trademarks and Merchandising a Brand by Rachel Mihlstin
- Patentability of 3D-Printed Organs by Tom Relyea
- Contemporary Fanfiction: Will Fair Use Become AU or Remain Canon? by Kerry Shamnoski
- Rethinking the Right of Publicity in the Era of Generative AI by Thomas Splagounias
- Patent Infringement: The "Efficient" Business Strategy Utilized by Big Tech by Annie Taylor
- "Is It Cool That I [Sampled] That?": Finding a "Delicate" Balance Between Intellectual Property Rights and the Creative Process by Kendall Zonghi
Thaler v. Vidal's Impact on Patent Protections of Autonomous AI-Enabled Orbital Commercial Satellites
By Julia Burke, Class of 2025
The uptick of generative artificial intelligence (AI) is evident in almost every industry and has crept into the patentability of inventions, as seen in Thaler v. Vidal. Thaler’s examination and ultimate denial of AI inventorship in U.S. patents left a multitude of questions regarding the trajectory and incentivization of advancing technology by using generative AI as a tool across jurisdictional lines.
While the U.S. straddles the line of giving proper inventors credit where it is due, the U.S. denied the recognition of generative AI as an inventor on patentable inventions under the statutory scope that an inventor must be a “natural person.” The U.S.’s decision in Thaler is not alone, yet the decision is met with foreign jurisdictions who opposed Thaler’s decision, and as a result, granted AI inventorship. This begs the question of what cross-jurisdictional incentives exist for jurisdictions to apply statutory interpretation to deny AI inventorship.
If incentives exist, the contrast in decisions among jurisdictions may cause Pandora’s Box to appear in application to technological advancement in specific industries. The booming space economy, initially driven by events like the Space Race, may face difficulties when inventors attempt to push incentives of industrialization and technological advancement. Controversies among differing decisions across jurisdictions regarding AI inventorship specifically may arise when implementing autonomous generative AI technologies in orbital commercial satellites as these satellites pass through foreign jurisdictions.
Under 35 U.S.C. § 105, U.S. inventions are protected in space. Without listing AI as an inventor on a U.S. patent, is the product, which is generated autonomously by generative AI tools already implemented in the build-design of a patented commercial satellite in orbit, protected as “made in the United States” if the United States does not list AI as an inventor? On the heels of the launch of Barry-I by Rogue Space Systems Corp., the first autonomous AI-integrated commercial satellite fleet, the question arises of whether a policy incentive exists that will disincentivize filing patents that the inventor knows generative AI technology will be integrated within the invention to alter and correct the invention in cross-jurisdictional spaces like within an orbital commercial satellite? Invoking economic policy, among other policies, this note will examine incentives created by Thaler that may impact the industrialization of technological advancements in aerospace through the recognition of AI as an inventor and the implementation of autonomous generative AI in orbital commercial satellites.
20 Years? How Embarrassing! Has Patent Law Lost the Plot Regarding Patent Term?
By Colin Dean, Class of 2025
Thomas Jefferson once likened obtaining a patent to the feeling of embarrassment. He was also the leading figure during the early United States Patent System. How can these two seemingly diametrically opposed sentences be reconciled? Today, the generally accepted idea behind patent law is that society grants a time-limited monopoly to incentivize technological progress. Can Jefferson’s philosophy on patent law be used as a basis for restructuring the patent system?
The Patent System has evolved since Jefferson’s time, adding new statutory and judge-made requirements to obtain a patent. These requirements, although fluctuating with the ever-changing makeup of courts, have generally raised the bar for patentability. At the same time, a blanket twenty-year patent term was implemented industry wide, extending patent term from 17 years enacted in 1861 and 14 years authorized by Jefferson in 1790. Thus, even though it is harder to obtain a valid patent today, the reward for doing so was increased almost fifty percent above and beyond what Jefferson first employed. However, is the coupling of the statutory and judge-made requirements with a blanket patent term the best way to achieve the balance of patent law? Could a merit-based patent system, focusing resources on determining patent term rather than patentability, be a better system in achieving the desired balance?
This note will explore the evolution of patent term and propose a merit-based patent term system to replace the current twenty-year standard patent term. To justify this new approach, this note will look at the relationship between patent term and patent requirements, along with adjacent legislation providing technical and philosophical arguments supporting the switch. After, this note will apply the new merit-based patent term system to the pharmaceutical industry, focusing solely on the most heavily scrutinized area of patent law. Lastly, this note will determine whether this framework could be used for the rest of the patent system, arguing for a more refined, easier patent system that achieves a better balance for all involved stakeholders.
By Jenafer Evans, Class of 2025
Noncompete agreements, also known as covenants not to compete, are often used as intellectual property (IP) protection tools. Noncompete agreements contractually prohibit employees from working for competitors. The covenants thus limit competitors’ ability to access valuable business information—especially trade secrets—by hiring competitors’ former employees.
However, the enforceability of noncompete covenants is presently in doubt. For example, California recently passed legislation making noncompete covenants statutorily unenforceable, and Massachusetts law generally does not favor noncompete covenants. Noncompete covenants have also caught the attention of the Federal Trade Commission (FTC). The FTC proposed regulations that would render noncompetes unenforceable throughout the United States because the FTC believes such agreements have detrimental effects on innovation and wages. While federal regulation could bring uniformity, certainty, and predictability to noncompete law, it would also cause a shift in the IP protection mechanisms businesses employ to maintain their competitive positioning.
This note will discuss the consequences, intended and unintended, of prohibitions against noncompete covenants on innovation. While such a ban could increase employee mobility, it might also decrease trade secret protections. Reduced trade secret protections may reduce innovation by companies who rely on trade secrets as protection. The result could be an overall decrease in innovation, which runs counter to some of the FTC’s purposes in prohibiting noncompete agreements.
The Inflation Reduction Act, Rising Healthcare Costs, & The "Patent Cliff" of Pharmaceuticals
By Dalton Ford, Class of 2025
The average American likely would not contest a statement such as “healthcare costs are out of control.” The number of people in the U.S. who have thought at some point “why is this prescription not covered by insurance?” or “why is my prescription so expensive?” is significantly higher than many of us realize. On August 16, 2022, President Biden signed the Inflation Reduction Act (IRA) into law, including “Subtitle B – Prescription Drug Pricing Reform.” The stated purpose of Subtitle B is to reduce government Medicare spending through a “program to lower prices for certain high-priced single source drugs.” The entirety of Subtitle B is a bit of a challenging read, but it does not take a stretch of the imagination to equate “single source drugs” with pharmaceuticals that are still under patent without a viable generic option. Projected to save roughly $91 billion taxpayer dollars by 2031, the IRA will allow for the government to negotiate with pharmaceutical companies to set maximum prices on certain drugs which are the top expenses for Medicare—effectively creating price caps on the most used prescriptions in the United States.
Pharmaceutical companies are not thrilled by this new policy, for a variety of reasons. Forty-five percent of their global revenues comes from U.S. consumers, and this regulation potentially wipes out a significant amount of that revenue. Lawsuits have already been filed in federal courts across the country calling Subtitle B an unconstitutional government taking. This is unsurprising, because while the second pill likely only costs a few cents to produce, the first pill may have cost hundreds of millions of dollars to research and receive approval by the FDA. Patent rights are provided to allow these companies a temporary right to exclude other companies, potentially bringing more money to the company, often covering research costs for the drugs they create. As a result of these exclusion rights often covering research costs, the U.S. produces more new medications than anywhere else.
My note will explore the economic incentives of pharmaceutical companies, potential harms to consumers if those incentives change, and if a change to our patent regime may just provide a solution. There might just be a middle ground that allows pharmaceutical companies to continue to make money, without the appearance of gouging consumers who depend on medical innovation.
Bye-Bye Birdie: Evaluating Residual Goodwill in Twitter’s Famous Trademarks
By Eric Gardner, Class of 2025
In July 2023, Elon Musk shocked the world by rebranding Twitter to “X” practically overnight. Conspicuously absent from X’s redesigned webpages are the Twitter brand and its signature bird logo. The decision to rename and rebrand Twitter has been met with criticism among trademark experts and the broader public. However, Elon Musk—who famously purchased X last year for the eye-watering price of $44 billion—has made clear that the Twitter name and logo are gone, and the new X name and logo are here to stay.
In the short time since the rebrand, much of the scholarly commentary has focused on potential legal challenges to the new “X” name and logo by X’s competitors. Less attention has been paid to what will become of the discarded Twitter trademarks. In the United States, the federal Lanham Act—the primary source of protection for trademarks—declares a trademark to be “abandoned” if “[the trademark’s] use has been discontinued with intent not to resume such use.” If enough time passes, a third party will likely be able to successfully claim that X’s statements and actions constitute abandonment of these trademarks. That third party will then be free to use the Twitter name and logo for their own purposes, even if X disagrees.
When analyzing abandonment disputes, courts and scholars sometimes discuss what they call “residual goodwill.” Residual goodwill is a term used to describe the continued association by consumers between a trademark and the original source of goods, even long after the mark has been abandoned by that source. However, other scholars dispute whether it is appropriate for courts to consider residual goodwill, or whether residual goodwill can be meaningfully quantified.
The Twitter name and “Twitter bird” logo present a rare opportunity to analyze the issue of residual goodwill in the context of well-known trademarks. This note will examine the current residual goodwill doctrine and argue that the current abandonment procedure spelled out in the Lanham Act should incorporate additional safeguards when the trademarks in dispute have previously qualified—or could have qualified—as a “famous” or “well-known” trademarks in order to protect consumers.
Regulatory Pricing Limits and the Value of Intellectual Property
By Andrea Hemberger, Class of 2025
The patent system was first implemented to encourage innovation by giving protection for inventions. However, instead of innovating new medications, pharmaceutical companies use the patent system to monopolize existing ones. Monopolies are known for driving up the costs, and the drug industry is no different. However, in August 2022, the Inflation Reduction Act was passed.
The Inflation Reduction Act aimed at curbing inflation with 3 main methods: reducing the federal government budget deficit, investing in domestic energy production while also promoting clean energy, and finally lowering prescription drug pricing.
To target prescription drug pricing, the Act aimed at lowering drug costs for people with Medicare and reducing drug spending by the federal government. Ever since the passage, the Act has hit legal roadblocks, slowing down implementation.
Regulators, however, still have their sights set on reducing drug prices. Congress has attempted to regulate pricing by going after the tail end of production, such as how people are paid, rather than how the drugs are produced. Inventions have always been thought to be one of the most important things to protect, so after patent protection, pharmaceutical companies have sold drugs at whatever cost they prefer. However, they are selling into a strictly regulated healthcare system where the government ends up paying for the drugs, to some capacity. This leads to many issues within the healthcare system, but what are the resulting effects for the private patent system?
This note aims to address what value Intellectual Property has when there are regulatory pricing limitations. We will first look at the Inflation Reduction Act, its overall effects, and some legal challenges it has been facing since enactment. We will then explore the ever-evolving story of insulin and how it highlights the extremes of the drug industry. Finally, we will address some politics of the drug industry with a goal to determine factual accuracy.
The Tension Between Ornamentation in Trademarks and Merchandising a Brand
By Rachel Mihlstin, Class of 2024
In 1960, the invention of the rotatable-multi-color-garment-screen-printing-machine sparked the explosion of graphic t-shirts in America, allowing consumers to sport their favorite slogans, catchphrases, comic book characters, band names, local shops, and much more. Trademarks are a large group of the graphics printed on these t-shirts, and companies capitalized on this new desire consumers had to voluntarily advertise their goods and services.
On the opposite side of the continuum, some companies want to hide their trademark altogether, contrasting the “logomania” of Supreme, Nike, and Louis Vuitton. Brands, like The Row and Arc’teryx, have made specific decisions to only use their trademark on their tags to avoid the fan craze and be deemed mainstream. At the heart of this schism between “logomania” and “quiet luxury” is ornamentalism, the unconventional use of trademarks. Slapping marks on t-shirts for merchandising purposes is at the crux of a merely ornamental rejection from the USPTO, unless the consumer can determine the mark owner is actually a secondary source of the shirt.
While a “merely ornamental” piece of merchandise might hold back a trademark application, consumers want to wear their favorite brands. There are many reasons why consumers want to sport their favorite brands: they love the product the mark is on, the aesthetic of the mark fits their personal style, they want to embrace the message of the mark’s brand, or they want other consumers to know they are embracing the message of the brand. However, many of these reasons have little connection to the actual product the mark is associated with. Consumers are having their own explicit and implicit conversations about the marks they chose to interact with, independent of the brand’s trademark and intent.
Patentability of 3D-Printed Organs
By Tom Relyea, Class of 2025
3D-printed organs have the potential to make organs available for all who need them. As 3D-printed organs move toward becoming more feasible there is one looming question: Are 3D-printed organs patent-eligible subject matter? The Supreme Court has held that natural phenomena are not patent-eligible and as 3D-printed organs improve, they will more closely resemble their naturally occurring counterparts.
Currently, scholars debate whether 3D-printed organs fall into the natural phenomena category because they are produced in a laboratory which may make them different from naturally occurring organs. In Myriad, Myriad attempted to patent isolated DNA sequences and the court held that the naturally occurring isolated DNA was not patent-eligible subject matter. Bioprinted organs are similar in that they resemble naturally occurring organs but are different in that the organs themselves are manufactured rather than isolated like in Myriad. Therefore, it is difficult to definitively say whether 3D-bioprinted organs will be patent-eligible subject matter or not.
This article will discuss whether 3D-printed organs are likely to be patent-eligible subject matter in light of recent Supreme Court and Federal Circuit decisions. It will also analyze different options to achieve market exclusivity for bioprinted organs should the organs themselves not be patentable. Lastly, this article will discuss policy considerations and who should decide the patentability of 3D-printed organs.
Contemporary Fanfiction: Will Fair Use Become AU or Remain Canon?
By Kerry Shamnoski, Class of 2025
Fan-derivative literature, commonly called fanfiction, is a way hundreds of thousands of people consume content; indulge in the literary arts; engage with their favorite movies, TV shows, books, video games, and other forms of media; and produce their own content. In fact, fanfiction has become a predominant, and even the sole way, people read and write, thus becoming a pillar for the literary arts. This rising importance to the individual, both in their engagement in literature and creative expression, has brought a shift in the boundless landscape of fanfiction.
It is most common that a person will produce a fanfiction and post it onto one of the many hosting websites online for free consumption. This practice, in most instances, has been found to be protected by the fair use doctrine under copyright law. In fact, it is being encouraged by a number of companies and creators, as such practices increase engagement and maintain interest in their work overtime. However, it is becoming more and more usual for fanfiction authors to take a bold step forward, writing fanfiction for money, generally in the form of commissions given by another in exchange for a particular fanfiction, breaching the first of the four fair use factors. In even rarer cases, fanfiction has been commercialized into huge projects, notoriously Fifty Shades of Grey, After, and a number of other movies that find their roots in fan culture.
Though fair use has been a reliable tool in protecting the rights of fanfiction authors everywhere, will this continue to be the case? Moving factors, such as an increased acceptance of fanfiction by original creators and owners, a growing commonplace for fanfiction commissions, a heavy reliance on fanfiction as a way to engage in the literary arts, the rising number of mainstream movies created from fanfiction, and other factors will determine this answer.
In this note, I will explore the contemporary culture and trends of fanfiction, the impacts of this on the existing fair use doctrine, and what will be the best form of protection for fanfiction, whether it be the fair use doctrine or a new approach entirely.
Rethinking the Right of Publicity in the Era of Generative AI
By Thomas Splagounias, Class of 2025
The right of publicity protects against the nonconsensual use of a person's name, image, or likeness for commercial gain. Currently, the right of publicity is recognized in thirty-eight states through statutes or the common law, and the proposed NO FAKES Act, if approved, could provide federal protection against the misappropriation of one’s name, image, or likeness in a digital replica. The NO FAKES Act was drafted in response to growing concerns over the recent progress of generative AI and the substantial misappropriation that has followed. This misappropriation ranges from deep fake videos of celebrities in commercials advertising apps to “Heart on My Sleeve,” the AI-generated Drake and Weekend track temporarily up for Grammy consideration.
Generative AI has been utilized in chatbots to replicate human speech since 1960. In 2014, the introduction of generative adversarial networks (“GANs”) into generative AI platforms transformed these platforms into powerful tools capable of creating multimedia artifacts. Modern generative AI platforms that utilize GANs can create convincingly authentic images, videos, and voices of real people nearly instantaneously. GANs implement a recursive process with a generator model, real data sets, and a discriminator model that trains the generative AI platforms to create more realistic outputs. Once trained, the platform can take a user prompt and produce the desired output.
The outputs of these systems frequently include the image or likeness of others. The classic example of misappropriation is when a third party prompts the system to create an output that uses another likeness, and the third party uses that output for commercial gain. The right of publicity, as currently understood, allows the victim to seek retribution from the third party and potentially contributorily from the generative AI platform. Nevertheless, the owner of the generative AI platform should be independently liable for their role in this type of misappropriation as well. The generative AI platform creates the output with another’s image and likeness, and the data sets that train these platforms utilize the images and likenesses of others. Since generative AI platforms receive commercial gain from their systems being used, the previously mentioned uses of the image and likeness of others by these platforms should constitute misappropriation by the generative AI platform owners. However, these uses avoid the scope of the right of publicity in its present form. Therefore, the right of publicity must be updated to provide meaningful protection to publicity rights in this digital world.
This note will explore the state of the misappropriation of publicity rights in the world of generative AI and the current right of publicity legal framework. Additionally, the discussion will highlight the shortcomings of the legal framework, and it will conclude with potential solutions to better protect publicity rights.
Patent Infringement: The “Efficient” Business Strategy Utilized by Big Tech
By Annie Taylor, Class of 2025
In 2006, the Court in eBay Inc. v. MercExchange, L.L.C. held that when considering whether to award permanent injunctive relief in patent disputes, courts should apply the same traditional four-factor test that is applied by courts of equity. Before this decision, patent infringement was met with a permanent injunction absent exceptional circumstances. Since then, the ITC has been increasingly utilized by patent owners who are finding it more difficult to obtain injunctions after eBay. Whether bringing your patent disputes to court or the ITC, there is one growing issue that neither forum has adequately addressed: efficient infringement.
“Efficient infringement,” or what I like to call “infringe now, pay later,” can be defined as the strategic choice a company makes to infringe on another’s patents given the calculation that if caught, they will still pay less money in a court-ordered judgment than in a negotiated licensing agreement. After the aforementioned slew of legal changes in patent law, efficient infringement is utilized more frequently because of the increased likelihood for infringing defendants to be ordered to pay no less than a reasonable royalty, while they continue to infringe and make billions. This is not to say that this shift from property rules to liability rules has had no positive impact for our patent system. However, in the context of efficient infringement, specifically by big tech companies, current options for remedies and damages are ineffective at deterring this predatory practice. While current determents like enhanced damages and attorney fees may seem debilitating for some companies, they can be a drop in the bucket for the Goliaths of the market.
To reveal the full injustice of this practice, I will talk about the recent Apple Watch battle between Masimo Corp. (Masimo) and Apple Inc. (Apple). This patent dispute is particularly meaningful because Apple is no stranger to efficient infringement. Boris Teksler, Apple’s former head of Patent Licensing & Strategy, even admitted that “efficient infringement, where the benefits outweigh the legal costs of defending against a suit, could almost be viewed as a ‘fiduciary responsibility,’ at least for cash-rich firms that can afford to litigate without end.” In this note, I will explain why efficient infringement has become an attractive practice, how Masimo Corp. v. Apple Inc. can help shed light on this ongoing issue, and how courts must implement the consideration of efficient infringement when awarding remedies and damages in order to level the playing field between David and Goliath.
"Is It Cool That I [Sampled] That?”: Finding a “Delicate” Balance Between Intellectual Property Rights and the Creative Process
By Kendall Zonghi, Class of 2025
In the ever-changing landscape of music copyright law, the Music Modernization Act (MMA) and the Digital Millennium Copyright Act (DMCA), alongside rapid technological advancements, pose compelling questions for the future of the music industry.
The DMCA, a cornerstone in online copyright protection, holds influence over user-generated content platforms. Within these platforms, the practice of music sampling—reusing parts of existing works in the creation of new ones—has sparked infringement disputes between musicians and songwriters alike. There is a precarious balance these platforms must maintain: fostering creative expression through sampling while safeguarding intellectual property rights.
The 2018-enacted MMA ushered in a new era for music licensing, introducing a blanket licensing scheme and the Mechanical Licensing Collective (MLC) to streamline mechanical licenses. A key question for legal scholars is how this legislation impacts the Copyright Royalty Board, which sets payment rates for mechanical royalties. Since the MMA's enactment, mechanical royalty rates increased from 11.2% to 15.1% in 2022. The blanket license system also allows streaming services to license songs without fear of copyright infringement. A centralized copyright database simplifies identifying rights owners, facilitating payment for derivative works.
How have these legislative changes influenced judicial decisions on copyright litigation? What implications do they hold for artists, platforms, and the broader industry? The intersection of the MMA and DMCA has the potential to provide space for derivative works while fairly compensating the owners of the original. In this legal symphony, a recurring theme emerges—the pursuit of equilibrium. Legislative changes promote transparency and accountability, laying the groundwork for fair compensation and reshaping intellectual property discourse in the digital age. This note navigates the intricacies of music sampling post-MMA and DMCA, revealing pathways that address the competing interests of creators, users, and intermediaries. By dissecting the implications of the MMA and DMCA on music sampling and licensing, exploring the role of user-generated content platforms, and evaluating the impact of recalibrated rate-setting standards, I aim to contribute to a nuanced understanding of evolving dynamics in music copyright law.
At its core, the argument revolves around achieving a delicate balance—preserving creators' rights, nurturing the creative process, and guiding the music industry toward a harmonious future.
