Menell, Lemley, and Merges on Intellectual Property in the New Technological Age

Peter S. Menell, University of California, Berkeley, School of Law, Mark A. Lemley, Stanford Law School, and Robert P. Merges, University of California, School of Law, have published Intellectual Property in the New Technological Age: 2016 – Chapters 1 and 2. Here is the abstract.

Rapid advances in digital and life sciences technology continue to spur the evolution of intellectual property law. As professors and practitioners in this field know all too well, Congress and the courts continue to develop intellectual property law and jurisprudence at a rapid pace. For that reason, we have significantly augmented and revised “Intellectual Property in the New Technological Age. The 2016 Edition reflects the following principal developments: ● Trade Secrets: Congress passed the Defend Trade Secrets Act of 2016, one of the most momentous changes in the history of trade secret protection. The new law opens up the federal courts to trade secret cases, provides for ex parte seizures of misappropriated trade secrets in “extraordinary circumstances,” and establishes immunity for whistleblowers. ● Patents: The past several years have witnessed some of the most significant developments in U.S. patent history — from the establishment of the new administrative review proceedings at the Patent Office to important shifts in patent-eligibility and claim indefiniteness at the Supreme Court and means-plus-function claim interpretation and infringement doctrine at the Federal Circuit. We have restructured the patent chapter to illuminate these areas. We have also significantly expanded coverage of design patents in response to the growing importance of this form of protection. ● Copyrights: The Supreme Court issued important decisions addressing the public performance right and the first sale doctrine. The past few years also witnessed important developments in the Online Service Provider safe harbor, fair use, and state protection for pre-1972 sound recordings. We have also integrated the digital copyright materials into a unified treatment of copyright law and substantially revamped the fair use section to reflect the broadening landscape of this important doctrine. ● Trademarks: We have integrated important cases on federal registrability of disparaging marks, merchandising rights, likelihood of confusion on the Internet, and remedies. ● Other State Protections: We have updated material on the right of publicity, an active and growing area. We have also reorganized the chapter and focused it on IP regimes.

Download the chapters from SSRN at the link.