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Intellectual Property Rights In The Internet Era: The New Frontier, 5 J. Marshall Rev. Intell. Prop. L. 589 (2006), Lulin Gao
UIC Review of Intellectual Property Law
With the rapid development of information and Internet technologies, how to protect intellectual property (IP) rights in the Internet era became a new frontier for IP practitioners and scholars internationally. This article highlights some important IP protection issues related to copyright, patent, trademark, and domain names, as well as the impact of technological advances on IP protection in the Internet era. The author believes that in order to solve these new emerging issues, the most important principle is keeping the balance between different sides with stakes in the IP right. Finally, international cooperation must be enhanced with more technical assistance …
The Intellectual Property Marketplace: Past, Present And Future, 5 J. Marshall Rev. Intell. Prop. L. 605 (2006), James E. Malackowski
The Intellectual Property Marketplace: Past, Present And Future, 5 J. Marshall Rev. Intell. Prop. L. 605 (2006), James E. Malackowski
UIC Review of Intellectual Property Law
This article provides an overview of the evolution of the intellectual property marketplace, describes existing mechanisms by which intellectual property value is transacted, and hypothesizes future marketplace mechanisms. A discussion of intellectual property value is also presented. Specifically, analyses of value indications as evidenced by the public and private equity markets are described. Finally, two future critical issues for intellectual property practitioners relating to intellectual property value are described: class action shareholder litigation and royalty stacking.
The Ip Asset Class: Protecting And Unlocking Inherent Value, 5 J. Marshall Rev. Intell. Prop. L. 402 (2006), Stephen Bennett
The Ip Asset Class: Protecting And Unlocking Inherent Value, 5 J. Marshall Rev. Intell. Prop. L. 402 (2006), Stephen Bennett
UIC Review of Intellectual Property Law
Intangible inputs are as important, or more important, to wealth creation than tangible assets and corporate leaders are beginning to recognize the value of their intangible assets. Investors are also focusing on companies whose primary property value is largely intangible intellectual property. IP investment strategies involve either attempts to raise and employ immediate capital through securitization or to protect the value of IP through insurance. The nexus between finance and IP presents a revenue opportunity for law firms. There is already a contingent of the legal community that services clients concerning IP issues but only a much smaller niche segment …
Ending The Circuit Split Over Use Of A Competing Mark In Advertising—The Blackstone Code, 5 J. Marshall Rev. Intell. Prop. L. 157 (2006), Douglas L. Rogers
Ending The Circuit Split Over Use Of A Competing Mark In Advertising—The Blackstone Code, 5 J. Marshall Rev. Intell. Prop. L. 157 (2006), Douglas L. Rogers
UIC Review of Intellectual Property Law
In KP Permanent, the Supreme Court recently confirmed that plaintiffs in trademark infringement cases under the Lanham Act have the burden of proving likelihood of confusion. As such, this article argues that lower courts do not have the authority to switch that burden of proof for such claims, even though they involve nominative uses (in which defendant is using the actual mark of plaintiff as plaintiff’s source identifier and not as a description of the defendant's products or services). This article also argues that because Congress created affirmative fair use defenses for descriptive uses of marks and for trademark dilution, …
Can Copyright Lend Its Cinderellaic Magic To Chinese Folklore?, 5 J. Marshall Rev. Intell. Prop. L. 203 (2006), Deming Liu
UIC Review of Intellectual Property Law
Folklore in China is disappearing and facing challenges for its very survival. To salvage folklore in China, some have called for immediate legislative action and proposed the law of copyright or sui generis protection as some potential solutions. However, copyright is traditionally concerned with the creations of individuals rather than the cumulative creations of an ethnic group or region. Furthermore, even sui generis protection, which is better adapted to folklore in theory, could be susceptible in practice to the abuses of private monopolies or state tyranny. Overall, the protection of folklore depends more on a consistent governmental policy of open-mindedness …
Has The Supreme Court Incorrectly Expanded § 271(E)(1) To Risk A Regulatory Taking?, 5 J. Marshall Rev. Intell. Prop. L. 216 (2006), Tara Stuart
UIC Review of Intellectual Property Law
The U.S.S.C. expanded the scope of the Hatch-Waxman Act’s safe harbor provision in Merck III to include protection for infringing use of any type of invention as long as a researcher intended to perform research reasonably relevant to FDA approval. This broad interpretation is inconsistent with the legislative intent of the Hatch-Waxman Act, and the policies of the U.S. patent system. Many patent owners may unnecessarily experience such a reduction in their property rights as to constitute a regulatory taking. The proposed narrow interpretation would rectify the constitutional problems and inconsistencies in infringement exemptions. Section 271(e)(1) should apply only to …
Redefining Utility In Determining The Patentability Of Dna Sequences, 5 J. Marshall Rev. Intell. Prop. L. 238 (2006), Diana A. Villamil
Redefining Utility In Determining The Patentability Of Dna Sequences, 5 J. Marshall Rev. Intell. Prop. L. 238 (2006), Diana A. Villamil
UIC Review of Intellectual Property Law
On September 7, 2005, the Federal Circuit in In re Fisher upheld the PTO’s final rejection for lack of utility of a patent application for certain DNA sequence fragments generated from maize plants. The court, supporting a heightened utility standard, adopted the “real-world” test for establishing substantial and specific utility required by the PTO. This decision severely limits the granting of patent rights to DNA sequence fragments, which are capable of having value within the biotech community as research tools. This comment proposes the restoration of a less stringent utility standard to more correctly reflect the purposes of patent law …
The Conundrum Confronting Congress: The Patent System Must Be Left Untouched While Being Radically Reformed, 5 J. Marshall Rev. Intell. Prop. L. 268 (2006), Robert A. Armitage
The Conundrum Confronting Congress: The Patent System Must Be Left Untouched While Being Radically Reformed, 5 J. Marshall Rev. Intell. Prop. L. 268 (2006), Robert A. Armitage
UIC Review of Intellectual Property Law
Patent systems reforms have been recommended by a variety of interests, including the Federal Trade Commission and the National Academies of Science and the private sector. Although calls for radical reforms have undeniable merit, the effectiveness of the existing patent system as an incentive to investment in innovation must be left untouched in the reform process. Unwise reforms include awarding patent injunctions only sparingly and limiting patent damages to nominal amounts for inventions relating to patentable combinations made of existing components. There are, however, “three pillars” that should guide reform: (1) introduce full transparency and objectiveness into the tests for …
The Metes And Bounds Of The Defendant Class Action In Patent Cases, 5 J. Marshall Rev. Intell. Prop. L. 292 (2006), Donald E. Burton
The Metes And Bounds Of The Defendant Class Action In Patent Cases, 5 J. Marshall Rev. Intell. Prop. L. 292 (2006), Donald E. Burton
UIC Review of Intellectual Property Law
Despite significant hurdles, the defendant class action in a patent infringement case is a potentially useful alternative to multiple lawsuits in many jurisdictions because a patentee who emerges from the class action proceeding with a favorable Markman ruling and a declaration of validity should normally be in a very strong position to collect damages. While nothing on the face of Federal Rule of Civil Procedure 23 precludes its application to defendant classes in patent infringement cases, the 23(b) requirements will be a major obstacle in convincing a court to certify a class of alleged infringers. Other practical considerations include personal …
Biotechnology's Prescription For Patent Reform, 5 J. Marshall Rev. Intell. Prop. L. 318 (2006), Christopher M. Holman
Biotechnology's Prescription For Patent Reform, 5 J. Marshall Rev. Intell. Prop. L. 318 (2006), Christopher M. Holman
UIC Review of Intellectual Property Law
On June 8, 2005, Congressman Lamar Smith introduced H.R. 2795, the “Patent Reform Act of 2005,” aimed at improving the quality and certainty of issued patents, simplifying the patent procurement process, harmonizing U.S. law with international practice, and reining in abusive patent enforcement practices. Congress has set the legislation aside for the time being, but will likely revisit the issue again shortly. The biotechnology industry, one of the fastest growing sectors in the United States economy, strongly opposes many of the proposed reforms. This paper considers the Congressional testimonies of the Biotechnology Industry Organization (“BIO”) and other representatives of biotechnology’s …
Suppression Of Innovation Or Collaborative Efficiencies?: An Antitrust Analysis Of A Research & Development Collaboration That Led To The Shelving Of A Promising Drug, 5 J. Marshall Rev. Intell. Prop. L. 348 (2006), Saami Zain
UIC Review of Intellectual Property Law
This article discusses antitrust issues present in research and development collaborations between competitors. In particular, it illustrates that, although often very beneficial, these collaborations may have the potential for considerable harm via suppression of innovation. The article examines a recent case involving a collaboration to develop drugs, which arguably resulted in the suppression of a promising drug.
Taming The Code: Effectively Implimenting Software Patents, 5 J. Marshall Rev. Intell. Prop. L. 382 (2006), Anthony E. Anderson
Taming The Code: Effectively Implimenting Software Patents, 5 J. Marshall Rev. Intell. Prop. L. 382 (2006), Anthony E. Anderson
UIC Review of Intellectual Property Law
Software patents are a sore subject for many programmers. Although still in their infancy, they have managed to anger many of those in the programming community. Software patents started to evolve in the early 80’s through multiple court decisions that eventually defined software as statutory patentable material. Although patentable, software has proven to be a formidable match for the examination process. The examination process has proven ineffective in properly examining software patent applications and as result multiple lawsuits based on frivolous patents have emerged. Potential battles such as the one between Creative and Apple over Creative’s patent for a hierarchal …
Why Are Competitor's Advertising Links Displayed When I Google My Product? An Analysis Of Internet Search Engine Liability For Trademark Infringement, 5 J. Marshall Rev. Intell. Prop. L. 431 (2006), Isaiah A. Fishman
UIC Review of Intellectual Property Law
Traditional federal trademark law is being challenged in the current case of Google v. AmericanBlind. When internet issues clash with trademark infringement, courts are often faced with the dangerous task of either refusing to stretch not specifically internet tailored trademark law to grant remedy to a perceived wrong or refusing to grant remedy because of the chilling effect the remedy may have on traditional trademark. By analyzing the history of trademark law in relation with internet issues, focusing on domain name cases, pop-up advertising cases, and search engine cases, it becomes clear that specific congressional action is the most viable …
Smithkline V. Apotex: Broadening The Scope Of Inherent Anticipation And Its Impact On The Patentability Of Chemical Structures, 5 J. Marshall Rev. Intell. Prop. L. 456 (2006), Bryan William Jones
Smithkline V. Apotex: Broadening The Scope Of Inherent Anticipation And Its Impact On The Patentability Of Chemical Structures, 5 J. Marshall Rev. Intell. Prop. L. 456 (2006), Bryan William Jones
UIC Review of Intellectual Property Law
In SmithKline v. Apotex, the Court of Appeals for the Federal Circuit invalidated the main patent on Paxil as inherently anticipated. In doing so, the court over-stepped the bounds of appellate review, and broadened the scope of the inherent anticipation doctrine to include chemical structures that are not measurably produced by strict practice of the prior art. This holding does not comport with well-settled precedent and could have dire consequences for the patentability of many chemical structures. A more equitable invalidity analysis would require a chemical structure to derive directly from a disclosed reaction in order to be anticipated; in …
Copyright Piracy In China, 5 J. Marshall Rev. Intell. Prop. L. 583 (2006), Ralph Oman
Copyright Piracy In China, 5 J. Marshall Rev. Intell. Prop. L. 583 (2006), Ralph Oman
UIC Review of Intellectual Property Law
Copyrights play a major role in promoting economic development and creating a national identity, and they have a tremendous impact on the social and economic well-being of nations. Within the past fifteen years, China has passed a strong copyright law, upgraded enforcement, and joined the Berne Convention. However, since then, the forward momentum has subsided and piracy has grown deep roots in China. If protecting their own citizens’ rights was not important enough, the threat of international trade sanctions for having inadequate intellectual property protection may force China to reevaluate their current situation and step up international protection.
Some Remarks On The Limits Of Harmonization, 5 J. Marshall Rev. Intell. Prop. L. 596 (2006), Graeme B. Dinwoodie
Some Remarks On The Limits Of Harmonization, 5 J. Marshall Rev. Intell. Prop. L. 596 (2006), Graeme B. Dinwoodie
UIC Review of Intellectual Property Law
Some Remarks on the Limits of Harmonization
Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long
Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long
UIC Review of Intellectual Property Law
What are the challenges facing the protection of traditional knowledge internationally? Can the protection of such rights, which have traditionally existed outside the boundaries of intellectual property, be achieved in the face of current challenges to protections epitomized by such emerging international movements as enhanced access to information and culture as a human right? This article examines some of the emerging issues in this hotly contested area and suggests that such movements, which are not adverse to intellectual property and traditional knowledge rights, should be used to craft a new method for addressing the issue of traditional knowledge protection internationally.
Recent Developments In Patent Law, 5 J. Marshall Rev. Intell. Prop. L. 630 (2006), Bradley C. Wright
Recent Developments In Patent Law, 5 J. Marshall Rev. Intell. Prop. L. 630 (2006), Bradley C. Wright
UIC Review of Intellectual Property Law
Over the past year, the United States patent law has developed significantly. Numerous cases were decided, shaping the future of patent law. This article tracks the development of patent law over the past year by analyzing important court decisions. These decisions affect various aspects of patent law, including the patentability of subject matter, the validity of patents, and the patent procurement process. While the specific impact of each decision varies, the combination of the decisions resulted in noteworthy changes to patent law in the United States.
Patent Cooperation Treaty – Implementation V. U.S. Law, 5 J. Marshall Rev. Intell. Prop. L. 641 (2006), Richard Lazarus
Patent Cooperation Treaty – Implementation V. U.S. Law, 5 J. Marshall Rev. Intell. Prop. L. 641 (2006), Richard Lazarus
UIC Review of Intellectual Property Law
What ways can an individual attack the enforceability of a patent that relies on the benefit of an earlier filed Patent Cooperation Treaty application (“PCT”)? This article highlights the top five PCT issues that an attorney should look for to successfully defend a client against infringement. The strategies discussed include: (1) searching for new matter; (2) searching for errors in inventorship; (3) examining an international filing date; (4) checking for withdrawal of an international application; and (5) examining estoppel arguments in international applications.
Special 301: Trips Plus – Alive And Kicking, 5 J. Marshall Rev. Intell. Prop. L. 651 (2006), Vicki Allums
Special 301: Trips Plus – Alive And Kicking, 5 J. Marshall Rev. Intell. Prop. L. 651 (2006), Vicki Allums
UIC Review of Intellectual Property Law
Despite significant strides and multilateral agreements, including requirements for enforcing intellectual property, trademark counterfeiting and copyright piracy remain a persistent problem for intellectual property owners as reflected in the 2006 Special 301 Report issued by the Office of the United States Trade Representative on April 28, 2006. Border measures are a key tool in the United States fight against counterfeiting and piracy at U.S. borders in the global economy where goods are manufactured in different countries and sold worldwide. How does the United States prevent infringing works from crossing its borders and assist its trading partners in creating border enforcement …
The Impact Of The New World Order On Economic Development: The Role Of The Intellectual Property Rights System, 6 J. Marshall Rev. Intell. Prop. L. 1 (2006), Joseph Straus
UIC Review of Intellectual Property Law
This article provides a close look at the development of intellectual property protection contrasted with the development of globalization. Specifically, the agreements forming the legal framework of the World Trade Organization are discussed and their impact on the economic development of developing countries examined. A closer look is given to China and India, where only recently intellectual property protection standards complying with mandatory rules of the TRIPS Agreement have been introduced, and where the most remarkable economic, scientific, and technological development can be observed. This article emphasizes the necessity of all members of the World Trade Organization to comply with …
The Wipo "Internet Treaties" The United States As The Driver: The United States As The Main Source Of Obstruction — As Seen By An Anti-Revolutionary Central European, 6 J. Marshall Rev. Intell. Prop. L. 17 (2006), Mihály Ficsor
UIC Review of Intellectual Property Law
The copyright policy of the United States developed from initial isolationism, through the 1891 Chase Act, various bilateral and inter-American agreements and the establishment of the Universal Copyright Convention, to active participation in the international copyright cooperation. This development was completed by the United States’ accession to the Berne Convention in 1988. Since then, the United States has played a leading role in this field, which was manifested both during the negotiations of the 1994 TRIPS Agreement and the preparatory work of the two 1996 WIPO “Internet Treaties”, the WCT and the WPPT. These WIPO Treaties, the preparation and adoption …
Recent Developments In Copyright Law: Selected U.S. Supreme Court, Court Of Appeals, And District Court Opinions Between February 1, 2005 And May 1, 2006, 6 J. Marshall Rev. Intell. Prop. L. 40 (2006), Tyler T. Ochoa
UIC Review of Intellectual Property Law
This article highlights nine selected U.S. copyright law decisions handed down between February 1, 2005 and May 1, 2006. Two of the decisions concern peer-to-peer file sharing, including the U.S. Supreme Court’s landmark decision in MGM v. Grokster. One of the decisions questions the applicability of the idea/expression dichotomy to works of visual art. Two of the decisions discuss ownership of the renewal rights in a work under the 1909 Act when the author is deceased. One of the decisions interprets the requirement that an author register his or her work before filing an infringement action. Two of the decisions …
Recent Developments In Trade Secrets Law, 6 J. Marshall Rev. Intell. Prop. L. 59 (2006), R. Mark Halligan
Recent Developments In Trade Secrets Law, 6 J. Marshall Rev. Intell. Prop. L. 59 (2006), R. Mark Halligan
UIC Review of Intellectual Property Law
As companies are increasingly trying to protect information by designating it as a trade secret, courts are increasingly trying to resolve litigation disputes relating to trade secrets misappropriation issues. Trends have emerged from these court cases, further defining the limits of trade secrets protection and attempting to carve out uniform rules concerning such protection. This article highlights some of the most interesting and recent developments in Trade Secrets Law.
Trademark Parodies: When Is It Ok To Laugh?, 6 J. Marshall Rev. Intell. Prop. L. 72 (2006), Emily Adelman
Trademark Parodies: When Is It Ok To Laugh?, 6 J. Marshall Rev. Intell. Prop. L. 72 (2006), Emily Adelman
UIC Review of Intellectual Property Law
In trademark parodies, there is a fine line between what is considered a First Amendment right to freedom of speech and what constitutes an unlawful appropriation, or trademark infringement. Current judicial decisions have been inconsistent across the different jurisdictions, thus making it unclear to parodists as to what may be lawfully appropriated when creating their parodies. This comment proposes that a new balancing test be used that is specific to trademark parodies. This new test will help to create more concrete guidelines that will reduce the amount of subjectivity that is currently used in trademark parody analysis.
The Cache Cow: Can Caching And Copyright Co-Exist?, 6 J. Marshall Rev. Intell. Prop. L. 101 (2006), Nicole Bashor
The Cache Cow: Can Caching And Copyright Co-Exist?, 6 J. Marshall Rev. Intell. Prop. L. 101 (2006), Nicole Bashor
UIC Review of Intellectual Property Law
Copyright protection in a digital environment is difficult. Protection is made more difficult because of the scope of the Internet, uncertainty of a governing Internet agency, and copyright enforcement problems. Copyright protection is further complicated because search engines utilize a process involving copying web sites and displaying cached links to web sites without the web site owner's express permission. By analyzing the intersection of copyright law and the search engine caching process, it is clear that search engines are on dangerous ground and possibly violate the copyrights of web site owners. Accordingly, a solution is proposed that compensates web site …
The Patent Reform Act’S Proposed First-To-File Standard: Needed Reform Or Constitutional Blunder?, 6 J. Marshall Rev. Intell. Prop. L. 129 (2006), Karen E. Simon
UIC Review of Intellectual Property Law
The proposed Patent Reform Act of 2005 would bring U.S. patent law into harmony with most other countries by adopting a first-to-file standard for determining patent rights. This comment questions whether overturning the first-to-invent standardand two hundred years of settled law is permissible under the Patent Clause of the U.S. Constitution. The comment concludes that the Patent Reform Act of 2005, as proposed, violates the Constitution, and supports its argument by placing intocontext of the founding fathers fear of extending government monopolies. The comment proposes that Congress focus on procedural reform, and not change thefundamental standard for awarding patent rights.
Why Bother Calling Patents Property? The Government's Path To License Any Patent And Maybe Pay For It, 6 J. Marshall Rev. Intell. Prop. L. 151 (2006), Bradley M. Taub
Why Bother Calling Patents Property? The Government's Path To License Any Patent And Maybe Pay For It, 6 J. Marshall Rev. Intell. Prop. L. 151 (2006), Bradley M. Taub
UIC Review of Intellectual Property Law
In 2006 the Federal Circuit in Zoltek Corp. v. United States denied a patent owner the basic protections of the Constitution. In 2005 the United States Supreme Court in Kelo v. City of New London effectively wrote the Public Use Clause out of the Fifth Amendment. This comment focuses on the constitutional and statutory rights of patent owners in light of Zoltek, Kelo, and 28 U.S.C. § 1498. After Zoltek and Kelo several questions remain, which this comment asks and analyzes. First, can the Federal Government unilaterally take a patent owner’s patent reasoning the taking benefits the economy, public safety, …