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Articles 1 - 25 of 25
Full-Text Articles in Law
Keynote Address: Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood
Keynote Address: Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Open Innovation In Plant Genetic Resources For Food And Agriculture, Chidi Oguamanam
Open Innovation In Plant Genetic Resources For Food And Agriculture, Chidi Oguamanam
Chicago-Kent Journal of Intellectual Property
Contemporary global order for the promotion of innovation exaggerates the role of intellectual property (IP) as a closed proprietary model of knowledge production and protection. Partly as a boomerang effect of that order or partly as a coincidence of the phenomenal rise in the information and communication technologies or both, there has been increased gravitation toward open, collaborative, shared, communal and interdependent models of innovation. This trend is typified by the rise of open software movement and cognate endeavours. The article attempts to transpose the open innovation dynamic to the context of plant genetic resources for food and agriculture (PGFA); …
Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak
Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak
Chicago-Kent Journal of Intellectual Property
Significant recent judicial and legislative developments have changed the way litigants and counsel need to plan for and litigate inequitable conduct allegations. Exergen and Therasense have heightened the standards for pleading and proving inequitable conduct, respectively, and Congress has expanded the patentee’s post-grant options for preempting or defeating inequitable conduct challenges. Without a doubt, the inequitable conduct litigation landscape has changed. Careful, thorough consideration of all of these developments and their implications is a must for any litigant or counsel faced with or considering asserting a charge of inequitable conduct. This paper discusses these significant recent inequitable conduct-related developments and …
Not All Patents Are Created Equal: Bias Against Predictable Arts Patents In The Post-Ksr Landscape, David Tseng
Not All Patents Are Created Equal: Bias Against Predictable Arts Patents In The Post-Ksr Landscape, David Tseng
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Canada's Inadequate Legal Protection Against Industrial Espionage, Emir Crowne, Tasha De Freitas
Canada's Inadequate Legal Protection Against Industrial Espionage, Emir Crowne, Tasha De Freitas
Chicago-Kent Journal of Intellectual Property
Canadian law provides little protection for individuals and corporations against industrial espionage. Akin to the United States' Economic Espionage Act of 1996-with its broad definition of "trade secret" and accompanying protections and remedies-we propose that Canada enact legislation at the federal level to remedy many of the deficiencies that arise in bringing a claim under the usual breach of confidence action.
All Together Now: The Family Of Marks Doctrine In The Era Of Apple, Inc., Austin Berger
All Together Now: The Family Of Marks Doctrine In The Era Of Apple, Inc., Austin Berger
Chicago-Kent Journal of Intellectual Property
While a significant doctrine within common law trademark, the family of marks doctrine has not been utilized by as many dominant corporations within the fifty years since its creation as one might expect. This may be because the doctrine and its analysis remains rather opaque with little substantive legal research devoted to its history and framework and with a pastiche of case law that, on first blush, fails to signal a clear, uniform approach among the circuits. The doctrine itself, however, has been a deft tool in the hands of certain corporations who have used it to protect the prized …
Rebuttable Presumption Of Public Interest In Protecting The Public Health --The Necessity For Denying Injunctive Relief In Medically-Related Patent Infringement Cases After Ebay V. Mercexchange, Lance Wyatt
Chicago-Kent Journal of Intellectual Property
The public’s interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court’s holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies. Unfortunately, this has not been the course that …
Recent Decisions Provide Some Clarity On How Courts And Government Agencies Will Likely Resolve Issues Involving Standard-Essential Patents, Steven M. Amundson
Recent Decisions Provide Some Clarity On How Courts And Government Agencies Will Likely Resolve Issues Involving Standard-Essential Patents, Steven M. Amundson
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Phoenix Rising? On The Fall And Potential New Rise Of State Trademark Rights, Charles Mcmanis, Henry Biggs
Phoenix Rising? On The Fall And Potential New Rise Of State Trademark Rights, Charles Mcmanis, Henry Biggs
Chicago-Kent Journal of Intellectual Property
This article addresses the historical interplay of federal, state and common law trademark rights as they relate to the scope of geographic protection. The article looks closely at the narrow context where federal trademark law may arguably provide for state trademark law to prevail. The article notes, however, that the specific state trademark language necessary for that state trademark right to prevail has slowly vanished from most state trademark statutes. Yet while the door has seemed to be closing in this area, a relatively recent case, National Ass'n for Healthcare Communications, Inc. v. Central Arkansas Area Agency on Aging, Inc, …
Hijacking Shared Heritage: Cultural Artifacts And Intellectual Property Rights, Amy Hackney Blackwell, Christopher William Blackwell
Hijacking Shared Heritage: Cultural Artifacts And Intellectual Property Rights, Amy Hackney Blackwell, Christopher William Blackwell
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Patent Litigation Attorneys' Fees: Shifting From Status To Conduct, Daniel Roth
Patent Litigation Attorneys' Fees: Shifting From Status To Conduct, Daniel Roth
Chicago-Kent Journal of Intellectual Property
Abusive patent assertion results in deadweight losses to society. Faced with the high cost of patent litigation, companies often settle for an amount equal to a fraction of the cost of defending a patent infringement suit. This allows the patent owner to extract settlements from many individuals without the risk of invalidation before a federal court. Shifting attorneys' fees to the prevailing party is a remedy courts award in exceptional cases to deter patent owners from bringing unreasonable claims of infringement and to return defendants to the position they were in prior to litigation. Current fee-shifting proposals target patent assertion …
Next Generation Copyright Misuse, Rebecca Sundin
Next Generation Copyright Misuse, Rebecca Sundin
Chicago-Kent Journal of Intellectual Property
No abstract provided.
The Illusion Of Copyright Infringement Protection, Jenny Small
The Illusion Of Copyright Infringement Protection, Jenny Small
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Free Riders At The Drugstore: Generics, Consumer Confusion, And The Public Good, Kelley Clements Keller Esq.
Free Riders At The Drugstore: Generics, Consumer Confusion, And The Public Good, Kelley Clements Keller Esq.
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett
Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett
Chicago-Kent Journal of Intellectual Property
This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.
The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R.K. Stroud
The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R.K. Stroud
Chicago-Kent Journal of Intellectual Property
Current theories governing trade secrets law incompletely and inadequately protect substantial investment in innovation, rendering them inefficient, reactionary, and largely illusory. Trade secret law exists to fill a gap between other forms of intellectual property and to encourage substantial investment in innovation and to recoup the time and money expended pursuing it, to the long-term benefit of the greater public good. Without strong trade secret protections, the “tragedy of the commons” would lead to the unfair destruction of the fruits of capital and labor and discourage investment in activities calculated to benefit the public, thus hurting our society. I propose …
Technically Speaking, Does It Matter? An Empirical Study Linking The Federal Circuit Judges' Technical Backgrounds To How They Analyze The Section 112 Enablement And Written Description Requirements, Dunstan H. Barnes
Chicago-Kent Law Review
Patent cases are decided exclusively by federal judges, who—unlike patent attorneys appearing before the United States Patent and Trademark Office—are not required to have any scientific or technical qualifications. The present empirical study explores whether there is a correlation between the technical backgrounds of judges on the United States Court of Appeals for the Federal Circuit and these judges’ analysis of the enablement and written description patent requirements under 35 U.S.C. § 112. The results indicate that Federal Circuit judges with technical backgrounds are more likely than their non-technical peers to reverse lower courts, but not significantly more likely to …
Shopping For Reversals: How Accuracy Differs Across Patent Litigation Forums, Teresa Lii
Shopping For Reversals: How Accuracy Differs Across Patent Litigation Forums, Teresa Lii
Chicago-Kent Journal of Intellectual Property
This study analyzes the rate of reversal on appeal of each district court for the most popular patent litigation forums in the United States. Alarmingly, this study finds that district courts which have been shopped for by litigants may also be the courts that are most often applying patent law erroneously. Among these districts is the notoriously patentee-friendly Eastern District of Texas, which has attracted huge volumes of litigants to its dockets in recent years.
Although forum shopping has always antagonized the fairness of civil proceedings, it is of special problem in the context of patent litigation. Where billions of …
A Book By Any Other Name: E-Books And The First Sale Doctrine, Elizabeth Mckenzie
A Book By Any Other Name: E-Books And The First Sale Doctrine, Elizabeth Mckenzie
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Reasonable Royalties And The Calculation Of Patent Damages: Reflections And Recommendations For A Fair And Adequate Calculating Basis Of Reasonable Royalties In Terms Of Harmonization Of China-Taiwan Regional Patent Laws, Chung-Lun Shen
Chicago-Kent Journal of Intellectual Property
Among the substantive issues of patent law, patent enforcement has received increasing focus in the global community. Owing to the intangibility of patents, and in view of the symmetry of exclusive rights with damages, courts and juries have difficulty calculating appropriate damages for patent infringement. Compared with the traditional calculation of patent damages, which rests upon the patentee’s losses or infringer’s profits, the basis of reasonable royalties provides a flexible concept for accommodating damages when the patentee cannot adequately prove damages, especially, when the patented or infringing products were not available in the market at the time of infringement. Until …
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda Beshears Cook
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda Beshears Cook
Chicago-Kent Journal of Intellectual Property
The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to acknowledge that in the common law …
Control-Alt-Incomplete? Using Technology To Assess "Digital Natives", Samantha A. Moppett
Control-Alt-Incomplete? Using Technology To Assess "Digital Natives", Samantha A. Moppett
Chicago-Kent Journal of Intellectual Property
Law students matriculating today were “born digital.” As digital natives, they have never known a world without digital technology, and therefore, they think and process information differently than previous generations. Although law school student bodies have changed, law school assessment methods have remained static, with students nearly universally being evaluated entirely by one exam at the end of the course. Best Practices, the Carnegie Report, and more recently the ABA, have acknowledged that this system of evaluation is contrary to learning theory and that periodic assessment of student learning is crucial to improving the performance of both students and teachers. …
Protecting Religious Identity With American Trademark Law, Steven John Olsen
Protecting Religious Identity With American Trademark Law, Steven John Olsen
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala
Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala
Michal Pekala
No abstract provided.
Injunctive And Reverse Settlements In Competition-Blocking Litigation (With Keith N. Hylton), Sungjoon Cho
Injunctive And Reverse Settlements In Competition-Blocking Litigation (With Keith N. Hylton), Sungjoon Cho
All Faculty Scholarship
We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant’s activity. The reverse settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.