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Category Archives: Patent and Trademark

Freedom to Tinker

Samuelson, Pamela, Freedom to Tinker (May 11, 2015). Theoretical Inquiries in Law, Forthcoming. Available for download at SSRN:

“People tinker with technologies and other human-made artifacts for a variety of reasons: to have fun, to be playful, to learn how things work, to discern their flaws or vulnerabilities, to build their skills, to become more actualized, to tailor the artifacts to serve one’s specific needs or functions, to repair or make improvements to the artifacts, to adapt them to new purposes, and occasionally, to be destructive. This article aims to explain why the law should protect a zone of freedom to tinker because of the many benefits that tend to arise from tinkering. I conceptualize freedom to tinker as having several dimensions: it entails, first, an intellectual freedom to imagine what one might do with existing artifacts to learn more about them; second, an intellectual privacy and autonomy interest in investigating and exploring those artifacts in which one has a property or other legitimate interest, especially when the investigation is done in one’s own premises; third, a right to build one’s skills by testing, analyzing, and interacting with existing artifacts; fourth, a liberty interest to become more actualized as a person through tinkering; fifth, a right to distill what one has learned from tinkering and disseminate the results of one’s research to others; sixth, a right to repair that which is broken and make other uses of artifacts as long as one is not harming the interests of others; seventh, a right to innovate based on what one has learned through tinkering; and eighth, a right to share innovations that result from tinkering with others if one chooses to do so and build a community around the innovation. Freedom to tinker has existed for millennia. Yet it has existed largely without a formally recognized legal identity. It has simply been an unregulated zone within which people were at liberty to act unobstructed by others (so long as they did not harm others). The main reason why it now seems necessary to articulate what freedom to tinker is and why it needs to be preserved and legally protected is because freedom to tinker is being challenged by several recent legal developments. Part I observes that users have considerable freedom to tinker with artifacts that are not encumbered by IP rights and are thus in the public domain. Trade secrecy, patent, and trademark laws have doctrines that generally provide user-innovators with considerable freedom to tinker. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Part II explains the substantial limits that copyright law and sometimes contract law place on user rights to tinker with and modify computer programs. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. Part II also discusses the constraints that anti-circumvention rules place on freedom to tinker. These rules outlaw most reverse engineering (“circumvention”) of technically protected copyrighted works and the making or offering of tools to enable such reverse engineering. Part III concludes that because tinkering with existing artifacts generally “promote[s] the progress of science and useful arts,” as well as other fundamental values, IP rules should be interpreted, or if necessary, adapted, to permit user tinkering that achieves this constitutional goal.”

What Administrative Law Can Teach the Trademark System

Wasserman, Melissa F., What Administrative Law Can Teach the Trademark System (May 7, 2015). Washington University Law Review, Vol. 93, 2016, Forthcoming. Available for download at SSRN: “In 2014, the Patent and Trademark Office (Trademark Office or Agency) made national headlines when it cancelled the Washington Redskins’ trademark registration. The Washington Redskins, a NationalContinue Reading

Big names or big ideas: Do peer-review panels select the best science proposals

“This paper examines the success of peer-review panels in predicting the future quality of proposed research. We construct new data to track publication, citation, and patenting outcomes associated with more than 130,000 research project (R01) grants funded by the U.S. National Institutes of Health from 1980 to 2008. We find that better peer-review scores areContinue Reading

Paper – New Ideas in Invention

New Ideas in Invention by Mikko Packalen, Jay Bhattacharya. NBER Working Paper No. 20922. Issued in January 2015. “A key decision in research is whether to try out new ideas or build on more established ideas. In this paper, we evaluate which type of work is more likely to spur further invention. When recent advancesContinue Reading

USPTO’s Plain Language Toolkit Empowers Public on Patent Litigation

Director’s Forum: A Blog from USPTO’s Leadership – September 15, 2014: “Following President Obama’s 2014 State of the Union call to curb abusive patent litigation, I joined with the National Economic Council and Secretary of Commerce Penny Pritzker to announce the progress the USPTO had made in response to some of the president’s executive actions onContinue Reading

Compendium of U.S. Copyright Office Practices, Third Edition

Released December 22, 2014. Download full text of the Compendium (1,288 pages). “Register of Copyrights Maria A. Pallante has released the Compendium of U.S. Copyright Office Practices, Third Edition (the “Third Edition”). The first major revision in more than two decades, the Third Editon presents more than 1200 pages of administrative practices and sets the stageContinue Reading

Lawsuits by Retired NFL Players Cause Jump in Trademark Filings

Transactional Records Access Clearinghouse: “The latest available data from the federal courts show that during September 2014 the government reported 705 new trademark lawsuits. This number is up 145 percent over the previous month and up 32.2 percent from a year ago. Most of the increase appears to be due to cases filed by retiredContinue Reading

Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets

Jones, D. R., Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets (September 29, 2014). South Texas Law Review, Vol. 56, No. 2, 2014 – Forthcoming; University of Memphis Legal Studies Research Paper No. 144. Available for download at SSRN: “In several recent lawsuits, publishers sued law firms forContinue Reading

Patent Citations and Stock Performance: Constructing a Dynamic Industry Classification

Gay, Sebastien and Karger, Ezra, Patent Citations and Stock Performance: Constructing a Dynamic Industry Classification (September 15, 2014). Available for download at SSRN: “Researchers in academia and the private sector use industry classifications to compare growth across and between industries, to construct industry indices, and to control for industry-level correlations of stocks over time. ButContinue Reading

Open Intellectual Property Casebook

“Duke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. It can also be purchased in a glossy paperback printContinue Reading

Formerly Manufacturing Entities – Piercing the ‘Patent Troll’ Veil

Osenga, Kristen Jakobsen, Formerly Manufacturing Entities — Piercing the ‘Patent Troll’ Veil (August 5, 2014). Connecticut Law Review, Forthcoming. Available at SSRN: “Everyone hates patent trolls, those companies that “hijack somebody else’s idea” and use the patents to “extort some money” from companies that actually make things. But not all patent trolls are created equal.Continue Reading

New NIST guidance planned as part of federal info policy

Adam Mazmanian via “Government officials can get ready to toss out their “For Official Use Only” stamps under a pending rule that would standardize how the government marks and stores information that is deemed sensitive but is not classified. The National Archives and Records Administration is leading the charge for a new policy on controlledContinue Reading