Law Commons^™

The Time Is Nigh: A Proposal For An International Patent System, Ben Mceniery

Chicago-Kent Journal of Intellectual Property

The world is slowly but inexorably moving towards adopting an integrated global patent system. It is inevitable that the present inefficient and splintered system in which patents must be separately obtained and enforced in each nation state must evolve to make obtaining global patent protection an achievable proposition for those other than just the wealthiest multinational corporations. The global patent system proposed in this article allows a patent applicant to file a single patent application in an international patent office, have that patent application examined in accordance with a uniform patentability standard, and results in the grant of a unitary …

Open Source Tactics: Bargaining Power For Strategic Litigation, James Skelley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

With Enough Eyeballs All Searches Are Diligent: Mobilizing The Crowd In Copyright Clearance For Mass Digitization, Maurizio Borghi, Kris Erickson, Marcella Favale

Chicago-Kent Journal of Intellectual Property

Digitization of 20th Century cultural heritage is severely restricted due to the real or potential subsistence of copyright and related rights. Under the laws on orphan works introduced in many countries, items whose copyright status is uncertain may possibly be lawfully digitized, on condition that a “diligent search” of the copyright owners has been performed. However, carrying out diligent searches on large collections is a lengthy and expensive process, which may discourage institutional users from embarking on large-scale digitization. While the problem of performing diligent searches has been so far approached in a “centralized” manner by individual institutions, the article …

Neglected Diseases: How Intellectual Property Can Incentivize New Treatment, Vinita Banthia

Chicago-Kent Journal of Intellectual Property

No abstract provided.

In Defense Of Patent Trolls: Patent Assertion Entities As Commercial Litigation Funders, Jean Xiao

Chicago-Kent Journal of Intellectual Property

This paper is the first to defend and commend the role of patent trolls in litigation. It argues that trolls either are not the sole source of patent litigation ills or are not responsible for these ills in the first place. Next, it demonstrates that trolls provide the same litigation-related benefits as commercial litigation funders, which also finance patent lawsuits. Troll commentators have ignored these benefits, for which funders are praised, in the evaluation of trolls. Finally, this paper explains that eliminating trolls will not only close off a source of these benefits but also worsen problems by shifting trolling …

Thoughts On The Relationship Between The Supreme Court And The Federal Circuit, Timothy B. Dyk

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Abuse Of Supreme Court Precedent: The "Historic Kinship", David W. Barnes

Chicago-Kent Journal of Intellectual Property

In Sony Corp. of America v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a “historic kinship” between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are …

Why The Supreme Court Should Use Ariosa V. Sequenom To Provide Further Guidance On U.S.C. § 101 Patent Eligibility, Naira Rezende Simmons

Chicago-Kent Journal of Intellectual Property

35 U.S.C. § 101 provides patent protection to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The Supreme Court previously concluded that Congress intended patentable subject matter to “include anything under the sun that is made by man.” Nevertheless, over the past five years the U.S. Supreme Court has made a series of decisions that narrowed the scope of subject matter eligible for patent protection.

In Mayo the court held that correlations between the concentrations of a metabolite in the blood and the concentration of a drug are not patent …

Panel Discussion: Remembering Justice Scalia In Ip Cases, Graeme Dinwoodie

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Whither (Wither?) Geographical Indications? The Case Against Geographical Indications And For Appellations Of Origin In An Era Of Glocalization, Benjamin Robert Hopper

Chicago-Kent Journal of Intellectual Property

One of the most hotly contested legal debates in international intellectual property law today concerns geographical indications (GIs) and appellations of origin (AOOs), referred to herein using the umbrella term “indication of origin” (IO). Central to the debate are two different systems for IOs—the sui generis system of AOOs and the like promoted by IO advocates like the EU (generally civil law jurisdictions) and the system promoted by IO skeptics like the US (generally common law jurisdictions) under which GIs are subsumed within a pre-existing trademark system. These divergent IO systems are manifestations of deepening fragmentation in the international IO …

Suspect Assertions Of Copyright, Edward Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Fair Use’S Unfinished Business, Rebecca Tushnet

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Challenges Of Following Good Advice About Copyright And The First Amendment, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Frand Market Failure: Ipxi’S Standards-Essential Patent License Exchange, Jorge L. Contreras

Chicago-Kent Journal of Intellectual Property

This case study pertains to Intellectual Property Exchange International, Inc. (IPXI), which was formed in 2008 to create a market-based trading exchange for aggregated patent license rights, particularly standards-essential patents (SEPs). IPXI based its model on existing commodities exchanges, proposing that non-exclusive patent licenses could be standardized, commoditized, and traded on an open market, thus eliminating costly and inefficient bilateral negotiations and providing a royalty rate likely to be viewed as “reasonable”. IPXI’s most ambitious offering involved a portfolio of 194 U.S., European and other patents deemed essential to IEEE’s 802.11n “Wi-Fi” standard. IPXI offered up to 50,000 tradable Unit …

The Right To Destroy Under Droit D’Auteur: A Theoretical Moral Right Or A Tool Of Art Speech?, Sofie G. Syed

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Sherlock Holmes & The Case Of The Contested Copyright, Jessica L. Malekos Smith

Chicago-Kent Journal of Intellectual Property

For generations, Sir Arthur Conan Doyle’s novels and short stories on the adventures of Sherlock Holmes have captivated the minds of readers and fueled a lucrative intellectual property market. The historical trajectory of international copyright protections to this literary canon, however, is an equally intriguing, if not mysterious, page-turner. This Note explores the procedural history of Klinger v. Conan Doyle Estate, Ltd., and examines how the literary characters of Sherlock Holmes and Dr. John H. Watson can simultaneously exist in the public domain, while certain story elements still remain under copyright protection in the United States until 2022.

Navigating The Legal Landscape Of A Subversive Art Form: Protecting Expression And Neglecting Embodiment, Dillon Henry Stern

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Copyright’S Other Functions, Margaret Chon

Chicago-Kent Journal of Intellectual Property

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as …

P, Mariana Lopez-Galdos

Chicago-Kent Journal of Intellectual Property

The paper tracks recent developments in the United States and EU competition systems with regard to the different policy tools used to address matters arising from the intersection of IP and competition policies. The analysis compares the enforcement and advocacy efforts carried out by the different antitrust agencies in the United States and EU.

This Article first traces how different authorities with antitrust mandates in the United States have dealt with the issue of balancing the rights of standard essential patent holders with innovation driven public welfare. This article then looks at how the antitrust authorities are using their antitrust …

Putting The Pieces Together: A Proposal For A Contributory Infringement Provision In Patent Law, Xianzhi Quan

Chicago-Kent Journal of Intellectual Property

Among the top five countries who have filed the most patent applications under the Patent Cooperation Treaty (“PCT”) in 2015, China is the only country that has no provision regarding contributory patent infringement. As a result, in patent cases related to contributory infringement, different courts have adopted different criteria to determine whether contributory patent infringement is present. This has resulted in many problems in China, causing confusion and conflicts in understanding among patent holders and the public.

With the increase of patent infringement cases in China, legislation on the standard of contributory patent infringement is imminent. This Article puts forward …

Limiting Downstream Effects Of Patent Licensing Activity In Software And Electronics: An Argument For Alienability Of Patent Licenses To Licensees' Business Successors, Anna A. Onley

Chicago-Kent Law Review

Frustrating the ability to transfer ownership is costly, and non-creative entities (NCEs) may contribute to rising costs of innovation by contractually requiring their licensees to seek NCE consent to subsequent license transfers. One possible way of gradually limiting the reach of NCEs in this area is to expand the doctrine of patent misuse—which supports the unenforceability defense to patent infringement—to construe restraints on alienation of patent licenses as patent misuse. This narrowly tailored approach, discussed in this Note, minimizes the risk of negative impact on the patent system because it avoids the question of patent invalidity and does not seek …

Keynote Address: Censorship In The Guise Of Authorship: Harmonizing Copyright And The First Amendment, M. Margaret Mckeown

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Defining The Press Clause: The End Of Hot News And The Attempt To Save Traditional Media, Adam Tragone

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Copyrights And Trademarks In Cyberspace: A Legal And Economic Analysis, Georgios I. Zekos

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Recent Trends In The Use Of Surveys In Advertising Law Disputes; An Update On The Case Law, Kenneth Plevan

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Rectifying Fair Use After Cariou V. Prince: Reviving The Forgotten Statutory Text And Requiring That Unauthorized Copying Be Justified, Rather Than Merely “Transformative”, Daniel J. Brooks

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Keeping Tabs: When Will Ttab Decisions Have Preclusive Effect? Preclusive Effect Of T.T.A.B. Likelihood Of Confusion Decisions After B&B; V. Hargis Industries, Brendan J. Ketchum

Chicago-Kent Journal of Intellectual Property

No abstract provided.

(Mis)Appropriation Art: Transformation And Attribution In The Fair Use Doctrine, John Carl Zwisler

Chicago-Kent Journal of Intellectual Property

Since the adoption of transformation by the Supreme Court, judicial decisions have continued to expand the fair use doctrine. Relying on transformation has led judges to subjectively critique and analyze artwork in order to make a legal decision. However, while a majority of circuits apply transformation, it is not followed by all of them. Transformation should no longer be a requirement in a fair use analysis concerning appropriation art, because it first requires subjective interpretation of an artist’s work. Transformation also gives an advantage to artists appropriating the work, claiming fair use of another’s copyrighted work. Instead, the emphasis should …

Multiple Intellectual Property Damage Complications As In Apple V Samsung? Try Using Excel, W. Lesser

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Korea Database: Wipo-Administered Udrp Decisions, The First Fifteen Years (2000–2014), Ilhyung Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.