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Currently, domestic protection for intellectual property is provided primarily through federal statutory law. For example, the legislative power to create patent law is derived from the Constitution, which permits Congress "to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 10 Although this section does not explicitly grant power to protect trademarks, power to do so has been derived from the Commerce clause 11 empowering Congress to regulate interstate commerce, culminating in the current federal trademark statute, the Lanham Act. 12 The Patent Act, 13 founded in the [*43] purposeful language of the Constitutional framers, is not limited by the scope of interstate commerce. The Copyright Act of 1976 14 constitutes the primary statutory basis for the law of copyright, which, in general, grants exclusive rights to the copyrighted work for the life of the author plus 50 years. This body of law currently provides the most important basis for protection of computer software, 15 an important new export from the United States.

With current estimated annual losses of 250,000 jobs and $ 80 billion in revenue to domestic and international intellectual property piracy, increasing effective intellectual property protection became a [*247] mandate. 44 Furthermore, a cry of economic necessity arose to increase the incentive to invest, especially to invest in the long, costly, and uncertain process of innovation. 45 Eventually, economic planners realized that the American patent system had always been designed to, and was inherently capable of, accomplishing both these objectives. 46 In a rare display of cooperation, all three branches of the United States Government commenced along a path toward increased intellectual property protection through the strengthening of patent rights. 47

The expansion of patent owners' rights through the use of declaratory judgment reflects a judicial trend toward increased patent protection. 21 This judicial trend is a significant aspect of a deliberate effort by the United States to strengthen intellectual property rights in the hope of promoting and protecting domestic technological innovations, thereby preserving American competitiveness in the world marketplace. 22

[[FOOTNOTE 22 BEGINS]]

This worldwide phenomenon has been driven significantly by developments in the United States, 65 so we can begin our discussion here. In recent years, the scope of patentability expanded significantly, 66 standards for nonobviousness diminished, 67 the experimental-use exemption was weakened, 68 and patents became significantly more likely to be upheld in the [*822] face of challenges in the courts. 69 The protectable subject matter of copyright law likewise expanded, most prominently to include software. 70 The term of copyright protection was extended repeatedly, 71 and enforcement actions against private, noncommercial copiers became more common. 72 Penalties for violating copyright became harsher, and the rights accorded to owners, for example to prevent derivative uses, became more robust. 73 Finally, entirely new forms of protection emerged, such as a sui generis system to protect plant varieties and exclusive rights in data used to register pharmaceutical products. 74 Interesting questions can be raised about whether all of these changes in law should be categorized together and about the appropriate baseline against which to measure the "strengthening" of IP law. 75 [[Footnote 75 begins]] IP scholars discussing the expansion of IP law typically invoke a formal definition of law, or "law on the books." This has the virtue of being both readily understood and conventional. (We generally speak of criminal law becoming stronger, for example, when the penalties associated with a crime are increased, rather than when the rate of a particular crime goes down.) One might reasonably object that the creation of IP rights in subject matter that previously did not exist (such as software) cannot be an "expansion" of IP unless one presumes a baseline of free information rather than property. Boyle himself notes this, suggesting that what he calls the "commons" of the mind might sometimes be more akin to frontier land or even drained swampland. See Boyle, supra note 64, at 41 n.34. But there are of course many indicators of the expansion of IP law that do not relate to newly existing subject matter (for example, lengthening copyright terms, the greater likelihood of success in patent infringement suits, and the introduction of robust exclusive rights in territories that previously lacked them). One might also ask whether the practical strength of IP law is greater today than it was thirty years ago, here invoking "law in action" rather than "law on the books." The digital era, of course, brings new and formidable enforcement challenges for rights holders in the area of copyright. It is not clear, however, that the same is true in patent. Even in copyright, the issue is not easily parsed; while the digital era clearly undermines some enforcement efforts, it also increases the ability of IP owners to extract revenue, price discriminate, employ technical protection measures, and detect illegal uses. See, e.g., Julie E. Cohen, Pervasively Distributed Copyright Enforcement, 95 Geo. L.J. 1 (2006). Moreover, the digital age creates new strategies for appropriation even as it undermines old strategies, see Yochai Benkler, The Wealth of Networks 29-90 (2006), suggesting that IP law could be stronger when measured against how much exclusivity is needed to generate the same amount of innovation. Yet another baseline we might use is the frequency with which individuals encounter IP law in their everyday activities. On that measure, copyright law has become significantly stronger since the advent of the digital age. See Jessica Litman, Digital Copyright 27-28 (2001). [[Footnote 75 ends]] There is [*823] clearly room for further specification of the claim, but on balance, it is fair to say, as many scholars have, that IP law has become stronger, both at a formal level and practically in many respects.

Adaptics argues that its new construction is necessary because Perfect's previous construction introduces an improper intent requirement by using the word "predetermined." Adaptics also contends that Perfect's construction improperly focuses on the goal of data monitoring instead of the data monitoring itself. Perfect responds that its construction is superior because it accounts for the specification's [*33] statement that "the user can adjust the period of inactivity." By ignoring this important description of the term in the specification, Perfect contends that Adaptics' construction falls short. Finally, Perfect points out that Adaptics' use of the word "significantly" introduces uncertainty.

Toth 18, judge United States Court of Appeals for Veterans Claims. (Joseph L., August 3, 2018, Decided, Opinion in Yarbrough v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1027, *7-8. Lexis accessed online via KU libraries)

Various treaties have streamlined the process by which patents are obtained in multiple countries. 11 In contrast, patent enforcement, and thus interpretation of patent scope, is based in national law. 12 Because national law can differ between countries, the scope of patent protection provided by an international patent application may therefore vary widely from country to country. The Epilady cases 13 are a particularly poignant example, as different jurisdictions arrived at different outcomes in the same patent infringement dispute. 14

The second important aspect of the model is the probability of patent enforcement, which is, in effect, an assessment of the patent's scope. 154 Opderbeck argues that a capable expert could offer an opinion about the probability of patent enforcement, allowing a federal court to evaluate properly the merits of the underlying litigation or settlement. 155

A bad-faith standard limited to the four listed factors is too narrow for the tradition of equity. Bad faith is "[a] devious or deceitful intent, motivated by self-interest, ill will, or a concealed purpose. The opposite of good faith." 106 A tradition of equity does not look to the offender's subjective state of mind, but offers a party "relief from hardship" 107 and addresses "social needs." 108 While the bad-faith standard looks to what the antagonizing party has done wrong, equity is a shield, granting protection based on hardship and social need. The Senate Report for the 1975 amendment notes that the bill would provide "protection against unfounded suits brought by trademark owners for harassment and the like." 109 The term "protection" suggests a broader equitable tradition - a "shield" - and not a focus on the "bad faith" of the actor. Since Congress looked to equitable "protection," as opposed to bad faith considerations, the bad-faith standard is misplaced and does not align with Congressional intent.

The statute provides, in effect, that every person who, as principal contractor, architect, etc., performs any work or furnishes any materials in or about the erection, construction, protection, or removal of any dwelling-house or other building, or any machinery erected or constructed so as to be or become a part of a freehold upon which it is to be situated, shall have a lien for such labor and materials. R. S. sec. 3314, as amended. See 2 S. & B. Ann. Stats. 1841. Lubricating [***3] oil sold to be used, and actually used, in operating mill machinery, may protect such machinery against the effects of friction, and thus preserve it from injury. But is it the intent of the statute to give a lien for everything used on machinery which may protect it and preserve it or keep it from wearing out? The statute seems to go on the principle that materials used and labor performed on machinery, which enhance its value and become a part of such machinery, should be entitled to a lien. This appears to be the object of the statute. It is clear that it is not everything used in operating machinery and which tends to preserve it, that is embraced within the meaning of the statute. Many things may serve to preserve machinery and make it operate more efficiently and easily, which do not protect it in the sense of the statute. Illustrations of this view were given on the argument, and others might be suggested. It will be noticed that the [*638] word "protection" is used in connection with "erection, construction, and repairs," as well as "removal." And while the word "protect" often means to cover, shield, or defend from injury, harm, or danger of any kind, the word imports [***4] in the statute something used or furnished for the machinery which not only preserves it from injury but becomes a part of the machinery itself.

It is further claimed that inasmuch as "the statute says nothing about the guard rails being a warning" that "the purpose, therefore, [***8] is to protect and not to warn." Since the word "protection" was used in the title of the original act and since Section 7563 contains the phrase, "they shall also protect," it may be helpful to ascertain the meaning of this term. Webster's Dictionary defines the word "protect" as follows: "To cover or shield from that which would injure, destroy or detrimentally affect. * * * to defend; to guard." Quoting again from Crabb's English Synonymes: "A person may be defended in any particular case of actual danger or difficulty; he is protected from what may happen as well as what does happen." In the light of such definitions there can be no doubt as to the use of the words "protect" and "protection" as used in these statutes. These guard rails were designed to protect the traveling public not only from what may happen but also from injury in event that something does happen. They were intended to serve both as a warning and a barrier.

On the other side of the issue is protection. As defined by Webster's dictionary, protection refers to the ability "to shield from injury or danger." 49 The following laws focus on ensuring that the owner of a created work of music is shielded from danger through the deterrence of unauthorized usage of that work.

To understand whether Article 6b grants standing to petition for substantive verses procedural rights under Mil. R. Evid. 412, the practitioner must analyze the meaning of the word "rights" under Article 6b(e)(1) as compared to the word "protections" under Article 6b(e) (4), as the terms are not interchangeable. The subsections are contradictory. Article 6b(e)(1) states that an alleged victim may file a writ if he or she "believes that a court-martial ruling violates the rights of the victim afforded by a [*44] section (article) or rule specified in paragraph (4)"; whereas, Article 6b(e)(4) states that 6b(e) (1) "applies with respect to the protections afforded by" those articles and rules. 60 A right is defined as "[a] power, privilege, or immunity secured to a person by law." 61 A substantive right is "[a] right that can be protected or enforced by law; a right of substance rather than form." 62 For example, psychotherapist-patient, victim advocate-victim, or attorney-client privilege are substantive rights. A procedural right is a right that derives from legal or administrative procedure" and can also be used to "help[] in the protection or enforcement of a substantive right." 63 For example, a procedural right is the right to notice or to be heard at a proceeding. However, the word "protection," the "state of being protected," is much broader and denotes being "shield[ed] from injury or destruction." 64

[*514] The term "protection" is further defined to include "matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property..." 207 The TRIPs Agreement thus defines "protection" very broadly to encompass a wide range of intellectual property rights and obligations.

However, one important question in this debate is: What is meant by “more effective” patents? One might think of several dimensions of “effectiveness” (or strength) of patents. Given a particular invention, and a particular set of claims, the first question is: How likely is something to get a patent? Many concerns raised in the debates about patent policy point to examples of low-level inventions that have received a patent, meaning that patents are protecting even small inventions (or possibly things that are not even inventions), and hence patents are strong, in the sense that they are protecting a wide range of inventions (Bessen and Meurer, 2008, Jaffe and Lerner, 2004).

A second dimension is how broadly those claims are interpreted. Patent claims describe the metes and bounds in technology space covered by the patent. The question is then: How close can a rival get to those claims as described without being accused of infringing? If those boundaries are wide (extending beyond the area directly claimed by the invention), then the patent can be seen as stronger or more effective. Comparing the US and Japan in the early 1990s, the US was seen as having more effective patents because the US had the doctrine of equivalents, while Japan did not (although Japan adopted this policy in 1998) (Cohen et al., 2002). Bessen and Meurer (2008) argue that unnecessarily broad interpretation of the boundaries around patents is one of the problems with the current system of overly strong patents (with uncertainty about the boundaries an additional problem).

Additionally, any discussion of patent protections and innovation would involve discussions of the advantages and disadvantages of pharmaceutical research and development. Strong patent protection is useful for advancement in biotechnology, synthetic biology, and other life sciences (Taylor, 2019; Ribeiro and Shapira, 2020; Liddicoat, 2020). Patents affect a wide variety of pharmaceutical practices from drug development to antibody/vaccine research (Lemley and Sherkow, 2023). However, advancements in the field of health and biotechnology would benefit from having stronger patent protections given the patent and investment intensive nature of these industries (Schultz, 2020), but also with respect to ability for patent owners to protect their patents (Alison, Lemley and Schwartz, 2015). In the field of biotechnology, gains in innovation from strong intellectual property rights has benefits across a variety of fields which means affirmative teams would not just be limited to the health benefits of biotechnological advancements, but could also read advantages based on GMOs, food shortages, environmental degradation, etc.

In sum, although Rosenthal could be cited for the proposition that implementing a safe injection site statute does not constitute enforcement, there is little else to support such a constrained definition of the term. No other court decision appears to have limited the term "enforcement" to acts that compel compliance with the law. Instead, other court cases have consistently recognized that "enforce" means to give effect to a law. 226 Because operators of a government-run safe injection facility would cause the state or local law that establishes and regulates the facility to take effect, they would be engaged in enforcement under this definition. Similarly, because employees of a government-run safe injection site would be operating pursuant to a statutory mandate, they would be in the same position as the police officer from Kama, who the Rosenthal court seemed to agree was entitled to immunity under the CSA.

"Patent reform" efforts in Congress, a hot topic for the last seven years, stemmed largely from concerns about excesses in patent enforcement and litigation. 1 Those efforts failed in each of the last three Congresses. Recently, the legislative sponsors cut back their enforcement-oriented proposals and the full Senate then stripped those that remained from the leading "reform" bill after hearing testimony on the remarkable developments described in this article. 2 Whatever "reform" legislation may pass both houses of the 112th Congress will do almost nothing to address the enforcement-oriented concerns that drove initial reform efforts. Nor will it make much difference to the strength or availability of U.S. patent protection or the rights of patent holders vis-a-vis infringers. 3

If a party breaches a secrecy agreement by revealing confidential information, the party seeking enforcement may seek damages for breach or an injunction. 106Both remedies invoke court power, through either a damages award in an enforceable judgment or an order that a party breaches at the peril of contempt. Either of these scenarios, most particularly an injunction against speech, would seem to implicate the First Amendment. 107

The practical implications of this radical assertion of investor privilege is two-fold. First, foreign IP investors, mainly from rich countries, could now directly sue virtually any government, rich or poor, to enforce any and all directly or indirectly incorporated IP-related treaties or the highest standard of comparable national IP law found anywhere in the world. These investor prerogatives sit on top of state-to-state dispute resolution mechanisms under TRIPS and other trade agreements. They sit on top of more stringent border and criminal enforcement measures that consume state resources. They sit on top of state-state investment clause dispute resolution. Finally they sit on top of new deterrent civil remedies, mandatory injunction rights and draconian damages. In other words, IP rightholders' enforcement options are now unbound.

Patent enforcement mechanisms are mainly private. Remedies include both damages and private injunctive relief. 11 Such actions are essential to patent law's overall goal of promoting innovation and the efficient commercialization of patented technologies. So they are not "private" at all in the sense that their purpose is simply to transfer wealth from one person to another, or to provide compensation for past harms. Rather, patent damages should give the patentee the correct set of incentives to innovate by deterring infringers. Antitrust damages actions serve a similar purpose within antitrust's domain.