Topicality - Georgetown 2024

1NC – “Significantly Strengthen” = New Causes of Action, Increase Penalties, New Rights, Increase Length of Protection
To “significantly strengthen” IPR means to create new causes of action, increase criminal penalties, expand protection to uncovered areas, or expand the length of protection.
Hughes 94 – Member of the U.S. House of Representatives from 1975 to 1995. Chairman of the House Subcommittee on Intellectual Property and Judicial Administration.
William J. Hughes, Speech on the House Floor Regarding the “Uruguay Round Agreements Act,” 140 Cong Rec H 11441, 29 November 1994, Lexis.
Title V of the act contains a number of important amendments to U.S. intellectual property laws that will significantly strengthen protection for authors and investors both domestically and overseas.
The intellectual property provisions are the result of extensive work and cooperation with the office of the U.S. Trade Representative to ensure that the implementing legislation was both reflective of the GATT agreement and responsive to U.S. needs. While I wish the final GATT agreement had required more in the area of national treatment and eliminated European and national content requirements in the area of audiovisual works, these are areas that will be the subject of continuing negotiations. The protection for pharmaceutical products also could have been accomplished in a shorter timeframe. We must not lose sight, however, of the fact that there are many industries and individuals which will benefit substantially from H.R. 5110.
I would like to briefly note the changes that are made to copyright, patent and trademark laws by H.R. 5110.
copyrights
Subtitle C contains four amendments on copyright and related rights:
(1) Section 511 lifts a 1997 sunset on the commercial rental of computer programs;
(2) Section 512 provides a new civil cause of action for performers to prevent bootlegs of their live musical performances;
(3) Section 513 provides new criminal penalties for bootlegging done "knowingly, and for purposes of commercial advantage or private financial gain;"
(4) Section 514 provides protection to preexisting works whose country of origin is another member of the Berne Convention or the World Trade Organization if those works are in the public domain in the United States due to noncompliance with formalities, lack of national eligibility, or, in the case of pre-1972 sound recordings, lack of subject matter protection. This amendment places the United States fully in compliance with its obligations under article 18 of the Berne Convention.
None of these provisions are, to my knowledge, controversial, and all are expected to strengthen the rights of U.S. copyright holders overseas as other countries change their laws in order to comply with their GATT (TRIPS) obligations.
Even President Clinton in his role as a jazz performer will benefit, since section 512, as required by articles 14(6) and 70(2) of the TRIPS agreement, extends protection to preexisting bootlegs, and it is my understanding that a bootleg recording of the President's jam session in Prague is currently being sold by mail order from New York. I've also heard the President's recording doesn't pose any competition to recordings of Lester Young or Coleman Hawkins.
patents
H.R. 5110, changes patent law in a way that will benefit American inventors and the public. Contrary to those ads you've been subjected to in the newspapers, the patent law changes will not reduce the length of the term of a patent.
The most significant change will alter the term of a patent from the present 17 years measured from date of the grant of a patent to a 20-year term measured from the date of filing of the patent application. This is the best policy for the operation of the U.S. patent system. This change alone will benefit the vast majority of patent owners by providing a longer term of protection instead of a shorter term as claimed by opponents.
1NC – “Significantly” = 20%
“Significantly” means at least 20 percent.
Doi Todd 11 – Retired associate justice of the California Second District Court of Appeal.
Kathryn Doi Todd, “Tesoro del Valle Master Homeowners Assn. v. Griffin,” 200 Cal. App. 4th 619, 3 October 2011, pp. 16-17, Lexis.
(1) Section 714 prohibits homeowners associations from imposing covenants, conditions or restrictions that effectively prohibit the installation of a solar energy system. (§ 714, subd. (a).) The statute further provides: “This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (§ 714, subd. (b).) Section 714 defines “significantly” as “an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed” for a solar water or swimming pool heating system, and as “an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed” for a photovoltaic system. (§ 714, subd. (d)(1)(A) & (B).)
2NC – “Significantly” = 20%
“Significantly” means at least 20 percent.
Starrs et al. 2K – Vice President for Government and Public Affairs at EDP Renewables North America. JD from UC Berkeley. PhD in Energy and Resources from UC Berkeley.
Thomas Starrs, Les Nelson, and Fred Zalcman, “Bringing Solar Energy to the Planned Community: A Handbook on Rooftop Solar Systems and Private Land Use Restrictions,” report sponsored by the U.S. Department of Energy, 2000, pp. 56, https://www.paulreverevillage.com/Community/Resources/CC%2BRs_and_solar_rights.pdf.
(5) For the purposes of this section: (a) "Significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed.
2AC – “Significantly” = 10% or Less
“Significantly” means less than 10%. It’s distinct from “materially,” which means 10-30%, and “substantially,” which means at least 30%.
Oryx 16 – Real estate company based in Namibia.
“Integrated Annual Report,” Oryx Properties, 2016, pp. 14, https://oryxprop.com/wp-content/uploads/2022/03/Annual-Report-2016.pdf.
Oryx Properties Limited takes guidance from the Namibia Stock Exchange (‘NSX’) Listing Requirements in assessing materiality. The Listing Requirements define matters and/or sensitive information as follows: ‘Significantly’ means price sensitive, but less than a 10% increase or decrease; ‘Materially’ means between a 10% and 30% increase or decrease; and ‘Substantially’ means equal to or greater than a 30% increase or decrease.
2AC – “Significantly” = Significant Degree
“Significantly” means “to a significant degree.”
Nakamoto 19 – Former justice of the Oregon Supreme Court.
Lynn R. Nakamoto, “Stop the Dump Coal. V. Yamhill City,” 364 Ore. 432, 28 February 2019, pp. 25, Lexis.
As used in ORS 215.296(1) to modify a "change in accepted farm or forest practices on surrounding lands," the ordinary meaning of "significant" indicates that the change has, or is likely to have, an important influence or effect on the farm or forest practices "on surrounding lands." Similarly, the ordinary meaning of "significantly" with respect to an increase in the cost of accepted farm or forest practices appears to mean to increase the cost in a significant manner, that is, in an influential and important way. See Webster's at 2116 (defining "significantly" as "in a significant manner * * * : to a significant degree").
It has no other specialized meaning.
Nakamoto 19 – Former justice of the Oregon Supreme Court.
Lynn R. Nakamoto, “Stop the Dump Coal. V. Yamhill City,” 364 Ore. 432, 28 February 2019, pp. 19-21, Lexis.
In broad terms, the parties have two disparate views of how the farm impacts test works. Riverbend and the county defend the Court of Appeals decision. In their view, to determine the significance of changes or cost increases on a single farm or multiple farms caused by a proposed nonfarm use, the local government must take a global view and consider whether the changes rise to the level of causing certain large-scale effects in the surrounding lands, especially a decrease in the supply of agricultural land. Petitioners, on the other hand, see the test operating in granular terms, farm by farm and farm practice by farm practice. They contend that the text of ORS 215.296 indicates that the farm impacts test requires (1) the applicant to properly identify the surrounding lands, the farms on those lands, the accepted farm practices on each farm, and the impacts of the proposed nonfarm use on each farm practice; (2) the local government to determine whether the proposed nonfarm use will force a "significant" change to, or cost increase in, an accepted farm practice, as that term is ordinarily used; and (3) if there is a significant change, the local government to determine whether the applicant has demonstrated that, with conditions of approval imposed pursuant to subsection (2) of the statute, the nonfarm use meets the test. As we will explain, we agree with petitioners that the legislature intended the farm impacts test to apply on a farm-by-farm and farm practice-by-farm practice basis and intended to use the ordinary meaning of "significant" and "significantly" in ORS 215.296(1), not a specialized meaning tied to the supply of agricultural land, supply of food, or farm profitability.
1AR – “Significantly” = Context-Based
“Significantly” is defined based on context – no uniform definition.
Breyer 05 – Judge for the U.S. District Court for the Northern District of California.
Charles R. Breyer, “Sierra Club v. Bosworth,” 2005 U.S. Dist. LEXIS 27573, 14 November 2005, pp. 27-28, Lexis.
The central concern of the Court's analysis is not whether the new information supports the Forest Service's original conclusions, or whether the effect of the project on the fisher is more likely to lead toward listing, but whether there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Friends of the Clearwater, 222 F.3d at 557 (emphasis added). If so, NEPA requires the agency to conduct a supplemental environmental analysis. Id.; see also Marsh, 490 U.S. at 374. Regulations promulgated pursuant to NEPA by the Council on Environmental Quality ("CEQ") define significantly' as "requir[ing] considerations of both context and intensity." Friends of the Clearwater, 222 F.3d at 557 n.4 (quoting 40 C.F.R. § 1508.27). Context means that "the significance of an action must be analyzed in several contexts," including both site-specific, regional and national. Id. Intensity "refers to the severity of the impact," and, in relevant part, the following factors should be considered:
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial; (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; and (7) whether the action is related to other actions with individually insignificant but cumulatively significant impacts.
Its meaning is context dependent.
Bracher 20 – Director at Norton Rose Fulbright South Africa. Insurance and financial services lawyer.
Patrick Bracher, “The difference between ‘significant’ and ‘substantial,’” Norton Rose Fulbright, 16 June 2020, https://www.financialinstitutionslegalsnapshot.com/2020/06/16/the-difference-between-significant-and-substantial/.
In April 2020 the UK Supreme Court had reason to discuss the difference between ‘significant’ and ‘substantial’ in the context of what is a ‘significant reduction in life expectancy’. The court said that ‘like the skin of a chameleon, the adjective takes a different colour so as to suit a different context’.
The word ‘significant’ often means something less than the word ‘substantial’. But in context it can mean ‘substantial’.
The court gave an example of the reduction of normal life expectancy of a 74 year-old to two years as not being significant whereas such a reduction for a 24 year-old would be a significant and therefore substantial reduction.
These words are often used in legal documents and care must be taken to use them correctly in the context. The fact that the meaning changes with context may be a reason not to use them at all and, if possible, be specific.
1NC – “Protection” – Excludes Enforcement
IP protection is the right itself to exclusivity. It’s distinct from enforcement of that protection, which includes civil/administrative procedures and criminal penalties.
Hicks and Holbein 97 – Laurinda L. Hicks is an attorney with the Washington, D.C. law firm Townsend & Banta, specializing in intellectual property law. James R. Holbein is the United States Secretary of the NAFTA Secretariat and an Adjunct Professor of Law at the Washington College of Law, American University.
Laurinda L. Hicks and James R. Holbein, “Convergence of National Intellectual Property Norms in International Trading Agreements,” American University Journal of International Law and Policy, vol. 12, 1997, pp. 771-790, Lexis.
Different national intellectual property legislation coexists within a common market, conferring privileges that restrict competition within the single market. The protection of intellectual property rights in a free trade market is essential to allow the free circulation of goods among member nations. In order to create a free trade market, member states must harmonize different intellectual property regimes and base the integrated system upon common rules of protection and enforcement. This is a difficult process due to divergences between national intellectual property regimes within a free trade agreement's member countries.
The focus of this article is on the convergence of national intellectual property norms into an international framework for the protection of intellectual property rights. Part I of this article examines the old system of international protection of intellectual property and its paradigms: the Paris Convention, the Berne Convention, and the World Intellectual Property Organization(WIPO). Part II studies the modern system of international protection of intellectual property rights consolidated in the World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS), the North American Free Trade Agreement regional trading block (NAFTA), and the emerging regional trading block of MERCOSUR, as well as the ongoing process of harmonization of intellectual property norms within its member countries: Argentina, Brazil, Paraguay, and Uruguay.
PART I:
ORIGINAL SYSTEM OF INTERNATIONAL PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
A.
Key Features of Major Forms of Intellectual Property
The major fields of intellectual property generally are classified as patents, copyrights, layout designs of integrated circuits, trademarks, service marks, geographical indications, trade secrets, and industrial designs. They share common themes and general principles found throughout intellectual property law.
Each form of intellectual property has a set of norms to determine what subject matter is protected, the procedures for achieving protection, the duration of protection, and legal remedies for infringement of the intellectual property right. The fundamental feature of these various forms of intellectual property is the exclusive right to exclude others from certain activities. This results from the property rights conferred to the intellectual property owners in symbols, abstract concepts, information, or creative expressions created by them. They are thus granted property rights to the products of their minds - intellectual capital.
Although the definitions of intellectual property rights in various countries differ regarding several important aspects, generally accepted definitions of the various forms of intellectual property rights based on common characteristics exist. Modern international intellectual property treaties such as the North American Free Trade Agreement 3 and the Trade Related Aspects of Intellectual Property Rights (TRIPS) 4 of GATT/WTO succeeded in defining the different concepts of intellectual property rights. Patents A "Letter Patent" is a grant by the government of a right to exclude others from making, using, offering for sale, selling the invention throughout the United States, or importing the invention into the United States for a period of time. 5 The fundamental criteria for patent protection are novelty, non-obviousness, and utility. 6 Under United States law, a patent provides protection for "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement." 7 One may patent nearly "anything under the sun that is made by man," provided it is useful. 8 There are three basic types of patents: utility patents, protecting utilitarian inventions; 9 design patents, protecting a new, original, and ornamental design for an article of manufacture; 10 and plant patents, protecting new plant varieties asexually reproduced. 11 Processes consisting merely of mental steps, however, such as a mathematical calculation, or processes amounting to only a method of doing business are not protected by patents. Patents provide the strongest protection of any form of intellectual property. The patent term is a short fixed term, 12 excluding all others from practicing his or her invention, 13 except when the patent holder grants a license to make, use, or sell the object of a patent for a limited period of time or in a limited territory. Under United States law, patent owners have the right to pursue a civil action against infringers. 14 Patent infringement consists of making, using, offering to sell, or selling a patent product within the United States, 15 or actively inducing another to do so. 16 In some cases where a patented process is performed abroad, and the product is imported into the United States or the imported product itself is covered by a United States patent, the patent owner can seek an exclusion order from the International Trade Commission. 17 Copyrights Copyright is a form of protection provided by the laws of numerous countries to authors of original works. The object of copyright protection is the form in which such works are expressed, which may be words, symbols, music, pictures, three-dimensional objects, or combinations thereof, such as copyrights, expressions with literary, artistic, or pictorial value. Copyright-related rights protect the work of performers, phonogram producers, and broadcasters. 18 Copyrights, however, do not protect any ideas, principles, themes, procedures, methods, systems, processes, or concepts. Only the form of the expression is protected. 19 The subject matter of copyright protection under United States law is "original works of authorship fixed in any tangible medium of expression." 20 Categories of protected works are broad, including books, magazine articles, speeches, music, motion pictures, other audiovisual works, computer programs, computer databases, architectural and technical drawings, sculptures, paintings, and poetry. Under United States law, the copyright automatically is secured at the work's creation, defined as the first time the work is fixed in a tangible medium of expression. 21 T

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