Quarterly Journal 49-4 Volume 49, Issue 4 December 2021

COMMON TIME AND COMMON PROPERTY: HARMONIZING MUSIC COPYRIGHT LAW WITH WESTERN MUSIC THEORY AND CONVENTIONS

Safeguarding musical building blocks from the exclusive appropriation of one creator is essential to maintaining and propagating a robust body of creative works whose very existences depends on the free use of common property. This article will aid practitioners and judges in classifying and delineating common property from protectible expression. Using foundations of music copyright law and Western music theory and traditions, this article identifies and analyzes courts’ efforts to filter out common property to determine what is actionable appropriation.

Following a rudimentary Western music theory guide to acclimate novices, the analysis of what constitutes originality in composition begins with melody and its ancillary features, followed by harmony, rhythm, and the structure and sound selection of compositions. A discussion of the crucial role that selection and arrangement plays in these disputes will incorporate guidance from the Ninth Circuit 2020 case Skidmore v. Led Zeppelin, which the Supreme Court declined to review.

COPYRIGHT FOR DJS: A STATUTORY LICENSE TO LEGITIMIZE DJS IN STREAMING

The disc jockey (“DJ”) field has historically been faced with copyright compliance issues, and the Covid-19 pandemic has intensified these copyright confrontations. When all in-person gatherings were on pause, DJs had no means to perform and connect to their audience other than through the streaming services. However, without a regulatory framework in place to legitimize DJing practice in streaming contexts, DJs have frustratingly found themselves in a dubious legal environment. Creative solutions are required to facilitate music licensing on an unprecedented scale in both audio and video formats and across a myriad of platforms. This Note recommends a legislative amendment to adopt a DJ blanket license in the form of a revised version of Professor Menell’s proposal to expand the § 115 statutory license to cover mixes and remixes. The revised blanket license that allows DJs’ use of copyrighted music in streaming will strike a balance between the rights holders’ interests in fair compensation and DJs’ interests in artistic expression and creation. To account for the compulsory nature, the interests of both sides and the established industry standards will inform tailored royalty payouts for various streaming scenarios.

A HARD TEST FOR SOFTWARE: DECODING AN IMPROVED ALICE/MAYO TEST FOR SOFTWARE-RELATED PATENTS IN THE FEDERAL CIRCUIT

American patent law awards patent protection to innovations that—along with meeting other requirements—fall under a category of so-called “patent-eligible subject matter” and denies this protection to innovations falling under certain “ineligible” categories. In Alice Corp v. CLS Bank International, the Supreme Court built upon its prior Mayo decision and expanded the “patent-ineligible” categories to bar abstract ideas—an innovation essentially applying or reciting abstract ideas cannot enjoy patent protection. However, this creates a conundrum for software-related patents: Software can be fairly understood as a set of instructions to be executed by a computer, and this observation raises a critical question: Are innovations relying on software inherently abstract—and thus inherently ineligible for patent benefits? Curiously, the Supreme Court has held the answer to be “not necessarily.” Since Alice, lower courts have grappled with reconciling this discrepancy. The Federal Circuit—enjoying nationwide jurisdiction over patent issues—has applied Alice/Mayo and has nonetheless found patent-eligibility for software-related patents. This Note explores the relevant Federal Circuit cases to discern what really makes software abstract and thus patent-ineligible—at least in the Federal Circuit’s view. This Note further proposes AMST: The Alice/Mayo Software Test in order to give practitioners a greater insight into software-related patent analysis at the Federal Circuit. Specifically, the AMST proposes that software-related patents seeking to protect technological improvements in computer processing should focus on the effects of the improvement while those seeking to protect improvements on prior art’s capability by incorporating software should focus on the actual change in practitioner capability.

PATENT SUBJECT MATTER ELIGIBILITY AND MEDICAL DIAGNOSTICS: WHERE DO WE GO FROM HERE?

Medical diagnostic devices play an increasingly important role in the advancement of modern medicine and promise to revolutionize the future with personalized therapeutics. Since the Supreme Court decided Mayo Collaborative Services v. Prometheus Laboratories (Mayo) in 2012, Section 101 jurisprudence has deprived many innovative, life-saving diagnostic technologies of patent protection. Since strong enforceable patents are the very lifeblood of innovation, Mayo has negatively impacted investment in the research and development of medical diagnostic technologies, and the life sciences industry at large. 

This Note will review the current state of patent eligibility jurisprudence for medical diagnostics and explore potential avenues forward for incentivizing their development and commercialization. First, this Note explains the legal and policy considerations that form the basis of and drive modern patent law. It then focuses on the judicial exceptions and how their problematic application to modern scientific innovation has plagued the patent system for the past decade, as exemplified by the splintering of the Federal Circuit in Athena Diagnostics v. Mayo Collaborative Services.

Next, this Note examines potential pathways to afford medical diagnostics intellectual property (IP) protection, in light of recent case law, events, and IP trends. Part A explores how the patent community can reframe the ways in which we characterize and define diagnostic devices, to craft both patent claims and arguments capable of circumventing Mayo’s precedent. Part B explores potential administrative remedies available through the United States Patent & Trademark Office (USPTO) and Congress’ power to delegate rulemaking authority. Next, Part C explores legislative options for Congress to reform Section 101. Finally, in Part D, this Note explains how the state of patent eligibility has driven innovators to pursue trade secrets as an alternative form of IP protection, and the practical and policy ramifications of this growing trend.