Google Books represents the latest attempt at the centuries-old goal to build a universal library. In 2004, Google started scanning books from libraries around the world. Although it made copyright licensing agreements with some publishers, it did not obtain permission from each rightsholder before scanning, indexing, and displaying portions of books from the stacks of libraries. Unsurprisingly, authors and publishers sued for copyright violations. Google settled the class action lawsuit in a sweeping agreement that has raised suspicion from librarians, users, and the government. In this paper, I analyze the antitrust and competition issues in the original and amended settlement agreements. I find that the simultaneous aspects of agreements and pricing pose serious antitrust problems. The settlement effectively gives Google simultaneous agreements with virtually all the rightsholders to in-copyright American books. The original agreement also would have required Google to set prices for books simultaneously. In a competitive market, both agreements and pricing would occur independently. Under current law, however, no potential competitor can make agreements with the rightsholders to orphan works. The simultaneity, therefore, concentrates pricing power, leading to cartel pricing (a problem under § 1 of the Sherman Act) and monopolization (a § 2 problem).

In a typical case of trademark infringement, a plaintiff must show, among other things, that potential consumers would be confused as to the source of a good or service, due to the defendant’s use of a mark (or in the case of trade dress infringement, the same or similar product packaging, design, labeling, etc.) that creates confusion as to source, sponsorship, or affiliation. This inquiry into the likelihood of confusion is most often governed by multifactor tests, the most prominent of which is the test articulated in Polaroid Corp. v. Polarad Electronics Corp. by the U.S. Court of Appeals for the Second Circuit. The Second Circuit is of particular interest to those who study trademark law as it generates the greatest number of trademark infringement opinions. In the Polaroid test, eight factors are considered, including: the strength of the original user’s mark, similarity of the marks, proximity of the products, the likelihood that the original user would enter into the alleged infringer’s market (thus, “bridging the gap” between the two markets), evidence of actual confusion, the alleged infringer’s intent, the relative quality of the products bearing the marks in question, and sophistication of the consumers of the products. Continued…

The United States Patent and Trademark Office (“PTO”) receives more applications today than it ever has before. What happens to those applications? Patent prosecutors all have stories and personal experiences. Until quite recently, however, this sort of “anecdata” was all that was available, because the law prevented anyone from ever finding out what happened to patent applications that did not ultimately issue as patents. Continued…

Nearly half of litigated patents are invalidated. To address this issue and reduce the number of “bad patents,” commentators and industry members have called for reforms to increase certainty in the patent system. Many have also proposed reforms that meet the varied needs of different industries. This paper responds to these prior proposals and proposes reforms that harness information known to patentees. These reforms are designed to meet industry-specific needs, as exemplified by the pharmaceutical and computer industries. Continued…

It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This Article offers some general guidelines to legal thinkers about how to understand brain imaging studies—or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary.

Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases. I tried to balance jurors’ likely positive response to the perceived characteristics of this evidence—vivid, objective, quantifiable, advanced—with their likely negative response to the use of this evidence in such cases (reflecting their prejudice, hostility, and hatred toward insanity pleaders)—and concluded that I was “not at all sure that the pizzazz of neuroimaging testimony—not withstanding its colorfulness and its propensity to reductionism—will trump these deep-seated attitudes.” In short, I sought to make the point that the science of neuroscience has to be assessed in the sociopolitical context of the specific question of law that is central to the specific case before the court. Continued…

In exchange for granting inventors a limited monopoly, the patent laws require inventors to “enable” the public to make and use their invention. In Liebel-Flarsheim Co. v. Medrad, Inc., Automotive Technologies International, Inc. v. BMW of North America, Inc., and Sitrick v. Dreamworks, L.L.C., the Federal Circuit made it far easier to show that patents are invalid based on lack of enablement in the predictable arts. These decisions rely on the enablement doctrine to invalidate claims that appear to be far broader in scope than what the written description of the patents suggests. Continued…