Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Intellectual Property Law

Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 12248

Full-Text Articles in Law

Antitrust Overreach: Undoing Cooperative Standardization In The Digital Economy, Jonathan M. Barnett Feb 2019

Antitrust Overreach: Undoing Cooperative Standardization In The Digital Economy, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Information technology markets in general, and wireless communications markets in particular, rely on standardization mechanisms to develop interoperable devices for rapid and secure data processing, storage and transmission. From 2G through the emergent 5G standard, wireless communications markets have largely achieved standardization through cooperative multi-firm arrangements that likely outperform the historically dominant alternatives of government monopoly, which is subject to informational deficits and regulatory capture, and private monopoly, which suffers from pricing and other distortions inherent to protected market positions. This cooperative process has successfully relied on a mix of reasonably secure patents, quasi-contractual licensing commitments supplemented by reputational discipline ...


Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor Feb 2019

Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor

Boston College Law Review

On January 12, 2018, the United States Court of Appeals for the First Circuit held, in In re Tempnology, that forcing specific performance of a trademark license after a contract rejection in a bankruptcy case would be contrary to the plain-language of Section 365(n) of the Bankruptcy Code and conflict with the goal of providing debtors with a “fresh start.” In so doing, the First Circuit joined the Fourth Circuit in a split with the Seventh Circuit, which has characterized a contract rejection as a breach in the context of non-bankruptcy law, therefore not extinguishing any trademark license rights ...


Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas Feb 2019

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent ...


Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest Feb 2019

Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest

Chicago-Kent Law Review

The United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s ...


Is The Federal Circuit Learning Its Lessons? A Case Study Of Bpcia Preemption, Mary Lafleur Feb 2019

Is The Federal Circuit Learning Its Lessons? A Case Study Of Bpcia Preemption, Mary Lafleur

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Harmonizing The Liner Notes: How The Usco’S Adoption Of Metadata Standards Will Improve The Efficiency Of Licensing Agreements For Audiovisual Works, Michael Reed Feb 2019

Harmonizing The Liner Notes: How The Usco’S Adoption Of Metadata Standards Will Improve The Efficiency Of Licensing Agreements For Audiovisual Works, Michael Reed

Chicago-Kent Journal of Intellectual Property

It is no secret that making a living as a musician is not as lucrative of a proposition as it was a generation ago. For this reason, musicians have had to diversify their sources of income. Placement of a song in advertisements, film, or television programs have become an integral part of many successful musician’s careers, but far too many independent artists still find these opportunities out of reach. This disparity is often the result of technical deficiencies in the audio files submitted for consideration, making it difficult to identify and contact the requisite rights holders in order to ...


Huge Numbers Of Patent Cases: How One District Judge Manages Them - The 2018 Supreme Court Ip Review Address, The Honorable William Aslup Feb 2019

Huge Numbers Of Patent Cases: How One District Judge Manages Them - The 2018 Supreme Court Ip Review Address, The Honorable William Aslup

Chicago-Kent Journal of Intellectual Property

No abstract provided.


The Crime Of Product Counterfeiting: A Legal Analysis Of The Usage Of State-Level Statutes, Kari Kammel Esq., Brandon A. Sullivan Ph.D., Lorryn P. Young Feb 2019

The Crime Of Product Counterfeiting: A Legal Analysis Of The Usage Of State-Level Statutes, Kari Kammel Esq., Brandon A. Sullivan Ph.D., Lorryn P. Young

Chicago-Kent Journal of Intellectual Property

This legal analysis of the state-level trademark counterfeiting criminal enforcement framework in the United States (“U.S.”) scrutinizes the use and non-use of state statutes to prosecute and convict trademark counterfeiters. Relying on state-level appellate court cases and conviction data, we found: (1) states inconsistently use and interpret criminal anti-counterfeiting statutes across the U.S.; and (2) strategies for building evidence in trademark counterfeiting criminal cases are strongest when based on cooperation with the victim (trademark owner). Based on our findings, to improve state-level anti-counterfeiting efforts, we recommend several best practices:

  • Adoption of specific criminal trademark counterfeiting statutes if states ...


The Patent On-Sale Bar Post-Helsinn And Its Effect On The Pharmaceutical Industry, Raja Chatterjee Feb 2019

The Patent On-Sale Bar Post-Helsinn And Its Effect On The Pharmaceutical Industry, Raja Chatterjee

Chicago-Kent Journal of Intellectual Property

The purpose of the patent on-sale bar is to discourage inventors from misusing the patent system and unfairly extending their patent exclusivity period. In Helsinn Healthcare v. Teva Pharmaceuticals, the Federal Circuit has distorted this doctrine far beyond its purpose. By including non-public business transactions within the scope of the on-sale bar, the Federal Circuit’s decision contradicts legislative history and express statutory language from the America Invents Act (“AIA”). This interpretation also makes the U.S. the only major patent system where a non-public sale can lead to the forfeiture of an inventor’s patent rights. The inclusion of ...


Patent Citation Analysis And Patent Damages, Dr. Peter A. Malaspina Feb 2019

Patent Citation Analysis And Patent Damages, Dr. Peter A. Malaspina

Chicago-Kent Journal of Intellectual Property

No abstract provided.


A Tale Of Two Approaches: Analysis Of Responses To Eu’S Fta Initiatives On Geographical Indications (Gis), Masayoshi Omachi Feb 2019

A Tale Of Two Approaches: Analysis Of Responses To Eu’S Fta Initiatives On Geographical Indications (Gis), Masayoshi Omachi

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Petitioner Estoppel From Patent Trial And Appeal Board Proceedings After Sas Institute Inc. V. Iancu, Jennifer Esch, Paula Miller, Stacy Lewis, Tom Irving Feb 2019

Petitioner Estoppel From Patent Trial And Appeal Board Proceedings After Sas Institute Inc. V. Iancu, Jennifer Esch, Paula Miller, Stacy Lewis, Tom Irving

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Due Process In Aia Proceedings After Sas Institute Inc. V. Iancu, Mikaela Stone, Britton Davis Feb 2019

Due Process In Aia Proceedings After Sas Institute Inc. V. Iancu, Mikaela Stone, Britton Davis

Chicago-Kent Journal of Intellectual Property

No abstract provided.


All Or Nothing: Why The Supreme Court Sas Mandate Does Not Eliminate The Shaw Safe Harbor, Matt Johnson, Michael Lavine, Daniel Kazhdan Ph.D, Lisa Furby, David Anderson Feb 2019

All Or Nothing: Why The Supreme Court Sas Mandate Does Not Eliminate The Shaw Safe Harbor, Matt Johnson, Michael Lavine, Daniel Kazhdan Ph.D, Lisa Furby, David Anderson

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Administrative Oversight: Justice Gorsuch’S Patent Opinions, The Ptab, And Antagonism Toward The Administrative State, Daniel D. Kim, Jonathan Stroud Feb 2019

Administrative Oversight: Justice Gorsuch’S Patent Opinions, The Ptab, And Antagonism Toward The Administrative State, Daniel D. Kim, Jonathan Stroud

Chicago-Kent Journal of Intellectual Property

In his first term, Justice Neil Gorsuch has made a surprisingly forceful impact on, of all things, patent law—and even more unlikely, the United States Patent and Trademark Office’s adjudicatory arm, the Patent Trial and Appeal Board. Was there any way to predict, from his 10th Circuit opinions below, that he would author opinions in all three patent cases in his first term? Was this attention the result of deeply submerged but long-felt opinions on patent law, or rather a result of his sharp distrust of administrative overreach? We analyze 10th Circuit and Supreme Court opinions authored by ...


Is Dna Really A Natural Product? It's Time To Separate Fact From (Legal) Fiction: An Examination Of Dna Patentability As A Biological Algorithm In The Post-Myriad Era, Nicholas Ulen Feb 2019

Is Dna Really A Natural Product? It's Time To Separate Fact From (Legal) Fiction: An Examination Of Dna Patentability As A Biological Algorithm In The Post-Myriad Era, Nicholas Ulen

Chicago-Kent Law Review

In 2013, the United States Supreme Court delivered its landmark decision in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., holding isolated DNA unpatentable, thereby invalidating the claims of thousands of DNA patents in the process. The opinion, delivered by Justice Thomas, reasoned that the act of separating DNA from the body did not sufficiently transform the molecule beyond what naturally exists. Yet the Court found that line to be crossed when it held certain artificially synthesized complementary DNA molecules coding for the exact same gene patentable. Unlike the Federal Circuit, the Court focused its analysis not on the ...


The Fatal Attraction Of Pay-For-Delay, Robin C. Feldman, Prianka Misra Feb 2019

The Fatal Attraction Of Pay-For-Delay, Robin C. Feldman, Prianka Misra

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Copyright Protection For Conceptually Separable Artistic Features Post-Star Athletica: A Useful Article On Useful Articles, Daan G. Erikson Feb 2019

Copyright Protection For Conceptually Separable Artistic Features Post-Star Athletica: A Useful Article On Useful Articles, Daan G. Erikson

Chicago-Kent Journal of Intellectual Property

In the wake of the U.S. Supreme Court’s ruling in Star Athletica v. Varsity Brands in 2017, U.S. federal district courts and the Copyright Office Review Board have grappled with the Supreme Court’s reimagined conceptual separability test for determining the copyrightability of artistic aspects of useful articles. An examination of the decisions in the first eighteen months post-Star Athletica reveals district courts have interpreted the Supreme Court’s guidance inconsistently, with some courts adding language to the test and even using overruled portions of previous tests. The author takes an empirical approach to evaluating such ...


Using A Phillips Construction In All Ptab Trials: The Impact On District Court Patent Actions And Ptab Proceedings, Sarah Jelsema, Andrew Mason, John Vandenberg Feb 2019

Using A Phillips Construction In All Ptab Trials: The Impact On District Court Patent Actions And Ptab Proceedings, Sarah Jelsema, Andrew Mason, John Vandenberg

Chicago-Kent Journal of Intellectual Property

No abstract provided.


The Collapse Of Covered Business Method Reviews, Eleanor M. Yost Feb 2019

The Collapse Of Covered Business Method Reviews, Eleanor M. Yost

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon Feb 2019

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing ...


Navigating Sino-American Business Relationships, Ryan Stenquist Jan 2019

Navigating Sino-American Business Relationships, Ryan Stenquist

Marriott Student Review

Relationships between American and Chinese companies have never been more important or profitable as they are now. With linguistic, moral, governmental, and legal systems developed entirely independent of each other for thousands of years, these relationships also prove the most difficult and complex to navigate. This article explores mistakes foreigners often make while doing business in China, the current environment and culture of joint ventures with native Chinese, and how to succeed in the challenging yet rewarding economy now opening up to the world.


Canada’S Summary Trial Procedure: A Viable Alternative To Summary Judgment On Trademark Likelihood Of Confusion Actions In The United States, Elaine Kussurelis Jan 2019

Canada’S Summary Trial Procedure: A Viable Alternative To Summary Judgment On Trademark Likelihood Of Confusion Actions In The United States, Elaine Kussurelis

University of Miami Inter-American Law Review

No abstract provided.


Coker V. Sassone, 135 Nev. Adv. Op. 2 (Jan. 3, 2019), Whitney Jones Jan 2019

Coker V. Sassone, 135 Nev. Adv. Op. 2 (Jan. 3, 2019), Whitney Jones

Nevada Supreme Court Summaries

The Court clarified that the appropriate standard of review for a district court’s denial or grant of an anti-SLAPP motion to dismiss is de novo.


Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu Jan 2019

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical ...


Chapter 4: Injunctive Relief, David O. Taylor Jan 2019

Chapter 4: Injunctive Relief, David O. Taylor

Faculty Scholarship

Patent systems commonly empower courts to order accused or adjudged infringers to refrain from continuing infringing conduct in the future. Some patentees file suit for the primary purpose of obtaining and enforcing an injunction against infringement by a competitor, and even in cases in which the patentee is willing to license an invention to an accused infringer for an agreed price, the indirect monetary value of an injunction against future infringement can dwarf the amount a finder of fact is likely to award as compensation for past infringement. In some of these cases, an injunction, if granted, would impose costs ...


Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig Jan 2019

Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig

Articles & Book Chapters

Since its explosion late in the twentieth century, the field of intellectual property scholarship has been a vibrant site for critical legal theorizing. Indeed, it is arguable that US-based intellectual property scholarship effectively generated a resurgence or ‘second wave’ of Critical Legal Studies. Exploring critical engagement with the very idea of ‘intellectual property’ and its conceptual counterpart, the ‘public domain,’ this chapter suggests that a vast swath of copyright scholarship that has bloomed over the past few decades, as copyright has expanded in its reach and relevance, builds implicitly or explicitly on insights gleaned from legal realism, Critical Legal Studies ...


Open Access, Nonexclusive Licensing, Author Rights, Kyle K. Courtney, Laura Quilter Jan 2019

Open Access, Nonexclusive Licensing, Author Rights, Kyle K. Courtney, Laura Quilter

New England Copyright Boot Camp

An overview of copyright in relation to author contracts, a hands-on exercise reviewing an author publication agreement, and pointers about talking with authors about their publication agreements.

Also includes an overview of Creative Commons licensing and how open access policies can change the copyright default for authors and provide a legal mechanism for institutions to share author works.


Why Do Startups Use Trade Secrets?, David S. Levine, Ted Sichelman Jan 2019

Why Do Startups Use Trade Secrets?, David S. Levine, Ted Sichelman

Notre Dame Law Review

Empirical studies of the use of trade secrecy are scant, and those focusing on startups, nonexistent. In this Article, we present the first set of data—drawn from the Berkeley Patent Survey—on the use of trade secrets by U.S. startup companies in the software, biotechnology, medical device, and hardware industries. Specifically, we report on the prevalence of trade secrecy usage among startups. Additionally, we assess the importance of trade secrets in relation to other forms of intellectual property protection and barriers to entry, such as patents, copyrights, firstmover advantage, and complementary assets. We segment these results by a ...


Future Of Scholarly Publishing And Scholarly Communication: Report Of The Expert Group To The European Commission, Directorate-General For Research And Innovation (European Commission), Jean-Claude Guédon, Jubb Consulting, United Kingdom, Bianca Kramer, Mikael Laakso, Birgit Schmidt, Elena Šimukovič, Jennifer Hansen, Robert Kiley, Anne Kitson, Wim Van Der Stelt, Kamilla Markram, Mark Patterson, Jan 2019

Future Of Scholarly Publishing And Scholarly Communication: Report Of The Expert Group To The European Commission, Directorate-General For Research And Innovation (European Commission), Jean-Claude Guédon, Jubb Consulting, United Kingdom, Bianca Kramer, Mikael Laakso, Birgit Schmidt, Elena Šimukovič, Jennifer Hansen, Robert Kiley, Anne Kitson, Wim Van Der Stelt, Kamilla Markram, Mark Patterson,

Copyright, Fair Use, Scholarly Communication, etc.

The Expert Group on the Future of Scholarly Publishing and Scholarly Communication was set up to support the policy development of the European Commission on Open Science. The Expert Group was asked to assess the current situation with regard to scholarly communication and publishing and to establish general principles for the future. This report analyses the recent past and present states of scholarly communication and publishing. It proposes ten principles through which a vision for scholarly communication is shaped over the next 10-15 years. These principles also serve as a way to examine shortcomings of the current scholarly communication and ...