November 2011 Vol. 110 No. 2 THE REVIEW
ARTICLES

The Accession Insight and Patent Infringement Remedies

Peter Lee

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset.

This Article draws upon accession-a physical property doctrine with roots in Roman civil law-to enhance patent law's treatment of technological improvement. While patents and property exhibit significant differences, this Article argues that accession-with some modification-can provide valuable guidance for allocating rights and obligations when an infringer substantially improves on another party's patented technology. Drawing on the Supreme Court's decision in eBay v. MercExchange, it proposes that courts apply accession in equitable determinations to deny injunctive relief and compel "substantially improving" infringers to compensate patentees through ongoing royalties. Accession would thus shift meaningful ownership of enhanced technologies to improvers based in part on their substantial contributions to those technologies. Such liability-rule protection would ameliorate holdup in "blocking patents" scenarios, provide a viable alternative to the rarely used reverse doctrine of equivalents, and encourage the dissemination of improved technologies. While this proposal seems radical, this Article shows that elements of the "accession insight" already appear in eBay and its progeny. The Article concludes by exploring the theoretical implications of accession for the intersection of patents and property.

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Efficient Breach of International Law: Optimal Remedies, "Legalized Noncompliance," and Related Issues

Eric A. Posner & Alan O. Sykes
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NOTES

Shutting the Back Door: Using American Needle to Cure the Problem of Improper Product Definition

Daniel A. Schwartz

Section 1 of the Sherman Act is designed to protect competition by making illegal any agreement that has the effect of limiting consumer choice. To make this determination, courts first define the product at issue and then consider the challenged restraint's impact on the market in which that product competes. When considering § 1 allegations against sports leagues, courts have tended to define products according to the structure of the leagues. The result of this tendency is that harm to competition between the leagues' teams is not properly accounted for in the courts' analyses. This, in turn, grants leagues a form of immunity to which they are not entitled under any statutory or doctrinal rule.

In reaching this conclusion, this Note reviews the business structure of sports leagues and explains why they present such a difficult challenge for courts. It then examines a number of cases in which courts, struggling with those challenges, improperly defined the product according to league structure. For each case, the Note explains the mistake that was made and how that mistake granted leagues de facto immunity. This Note concludes by arguing that the Supreme Court's recent decision in American Needle can serve as the impetus for correcting this mistake if courts broadly interpret the meaning of the case by looking to the logic that animates it.

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Unclaimed Property and Due Process: Justifying "Revenue-Raising" Modern Escheat

Teagan J. Gregory
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