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Articles 1 - 22 of 22
Full-Text Articles in Law
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 …
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
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 Halo …
Beyond Trademark: The Washington Redskins Case And The Search For Dignity, Victoria F. Phillips
Beyond Trademark: The Washington Redskins Case And The Search For Dignity, Victoria F. Phillips
Chicago-Kent Law Review
In her pioneering book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, Professor Bernadette Atuahene employs a detailed ethnographic study of South Africa’s land restitution program to develop the concept of a dignity taking. This article extends the application of Atuahene’s theory to the taking of intangible property arguing that the misappropriation of cultural identity and imagery for use as a federal trademark can also constitute a dignity taking in certain cases. Perhaps no effort has received more public attention than the longstanding battle over the Washington NFL football team’s name and its federally registered “Redskins” …
The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor
The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor
Chicago-Kent Law Review
No abstract provided.
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 …
When Is A Patent Exhausted? Licensing Patents On A Claim-By-Claim Basis, Lucas Dahlin
When Is A Patent Exhausted? Licensing Patents On A Claim-By-Claim Basis, Lucas Dahlin
Chicago-Kent Law Review
The patent exhaustion doctrine is meant to protect legitimate purchasers of patented items from post-sale restrictions imposed by patent owners. The courts, however, have recently expanded the doctrine of patent exhaustion by holding that the sale of a device which “partially” practices a patent exhausts that patent in its entirety. This holding essentially precludes patent owners from licensing their patents on a claim-by-claim basis. As inventions become more complex and require more parties working in concert to bring an idea to market, the inability to license patents on a claim-by-claim basis will lead to inventors being unable to fully monetize …
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 …
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Chicago-Kent Law Review
The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …
The Story Of A Character: Establishing The Limits Of Independent Copyright Protection For Literary Characters, Samuel J. Coe
The Story Of A Character: Establishing The Limits Of Independent Copyright Protection For Literary Characters, Samuel J. Coe
Chicago-Kent Law Review
Copyright law provides writers with a way to protect their original works of authorship, but courts often disagree over the scope of this protection and how far it can be extended for the fictional characters appearing within literary works. Characters like Holden Caulfield and James Bond have become extremely valuable forms of intellectual property, but even for such iconic figures it can be difficult to separate the character from the story to determine where one work ends and the other begins. To address this issue, the Second Circuit follows the "distinctly delineated" test, which asks whether a character has been …
Heavy Metal Alloys: Unsigned Rock Bands And Joint Work, Michael S. Young
Heavy Metal Alloys: Unsigned Rock Bands And Joint Work, Michael S. Young
Chicago-Kent Law Review
This note uses humorous illustrations culled from the history of popular heavy metal music to facilitate examination of the effectiveness of joint authorship analysis by modern federal courts. The note carefully considers a variety of common contributions made by band members in the absence of any written or verbal agreement about authorship, and concludes (1) that a more equitable regime would do away with the requirement that a co-author make an "independently copyrightable" contribution, and (2) that courts must take greater care not to transform "will to control" into "intent to be a sole author."
League Parity: Bringing Back Unlicensed Competition In The Sports Fan Apparel Market, David Franklin
League Parity: Bringing Back Unlicensed Competition In The Sports Fan Apparel Market, David Franklin
Chicago-Kent Law Review
Should professional sports teams and collegiate institutions have an exclusive right to merchandise their logos? Recent court decisions have effectively provided these organizations with a monopoly in the fan apparel marketplace, as retailers who are not "officially licensed" by the underlying team or university are likely to face trademark infringement liability. In some contexts, this extension of trademark law has prevented companies from selling merchandise that merely displays a team's color scheme. However, such a broad prohibition on the use of team logos is inconsistent with the goal of trademark law, which is intended to prohibit uses of a mark …
Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung
Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung
Chicago-Kent Law Review
Within the past couple of years, social networking websites have become an immensely popular destination for people from all walks of life. Websites like Facebook and Twitter now count tens of millions of worldwide users, including world leaders and a number of celebrities. Eventually, users realized that social networking websites lent themselves to the quick and easy impersonation of celebrities through the creation of fake social networking accounts, often as a form of parody. One subject of such impersonation was professional baseball manager Tony La Russa, who took the then-unprecedented step of suing his impersonators and Twitter over the incident. …
Dependent On The Jury: Anticipation And Obviousness Of Dependent Patent Claims And Irreconcilable Jury Verdicts, Patrick Bickley
Dependent On The Jury: Anticipation And Obviousness Of Dependent Patent Claims And Irreconcilable Jury Verdicts, Patrick Bickley
Chicago-Kent Law Review
A jury verdict finding an independent claim valid but a related dependent claim either anticipated or obvious is irreconcilable. However, the Federal Circuit has used the inconsistencies between regional circuits on the issue of jury verdicts to reach different outcomes in similar cases based solely on the region in which the patent case originated. This note advocates a modification to the Federal Circuit's rule of deference to consider irreconcilable verdicts of independent and dependent claims under its own independent analysis. A consistent approach allowing for appellate review regardless of post-verdict motions is advocated, although a more modest position of requiring …
Securing Global Trademark Exceptions: Why The United States Should Negotiate Mandatory Exceptions Into Future International Bilateral Agreements, Brian S. Kaunelis
Securing Global Trademark Exceptions: Why The United States Should Negotiate Mandatory Exceptions Into Future International Bilateral Agreements, Brian S. Kaunelis
Chicago-Kent Law Review
In December 2007, the European Union and the CARIFORUM States concluded a bilateral economic partnership agreement that included a mandatory fair use exception to trademark owners' rights. The EC-CARIFORUM Agreement is the first agreement that mandates the inclusion of Article 17 of the World Trade Organization's Agreement on Trade-Related Intellectual Property Rights and requires an exception to trademark rights. The push to balance international trademark owners' rights has begun, and this Note will detail why the United States should follow the European Union's lead and negotiate mandatory trademark exceptions into future bilateral agreements.
"Willful Patent Filing": A Criminal Procedure Protecting Traditional Knowledge, Vincent M. Smoczynski
"Willful Patent Filing": A Criminal Procedure Protecting Traditional Knowledge, Vincent M. Smoczynski
Chicago-Kent Law Review
This article explores the interaction between current intellectual property regimes and traditional knowledge and concludes that national laws currently in place inadequately protect traditional knowledge holders. When property rights are granted on traditional knowledge, the effects can extend not only to the indigenous communities, but to the surrounding ecosystems and the global market. Commercialization and increased demand leads to shortages in natural resources and increased prices. Therefore, in order to ensure that patent applicants are deterred from acquiring property rights in traditional knowledge, as well that traditional knowledge holders receive proper benefits for their labor and knowledge, this article advocates …
Patenting Cryptographic Technology, Greg Vetter
Patenting Cryptographic Technology, Greg Vetter
Chicago-Kent Law Review
The policy concerns intersecting patent law and cryptographic technology relate to the technology's beneficial uses in securing information in a commercial and social fabric that increasingly relies on computing and electronic communications for its makeup. The presence of patenting in a technology can impact diffusion of interoperable technology. Standardized embeddable cryptography facilitates its supply. Patent law for several decades has waxed and waned in its embrace of software implemented inventions rooted in abstract ideas such as the mathematics and mathematical algorithms underlying modern cryptography. This article documents the growth of cryptographic patenting. Then, in light of this growth and patent …
The Political Economy Of Data Protection, Peter K. Yu
The Political Economy Of Data Protection, Peter K. Yu
Chicago-Kent Law Review
Information is the lifeblood of a knowledge-based economy. The control of data and the ability to translate them into meaningful information is indispensable to businesspeople, policymakers, scientists, engineers, researchers, students, and consumers. Having useful, and at times exclusive, information improves productivity, advances education and training, and helps create a more informed citizenry. In the past two decades, those who collected or obtained access to a large amount of data began to explore ways to use the collected data as an income stream. Because the then-existing laws did not offer adequate protection for that particular purpose, they actively lobbied for stronger …
Trade Secrets, Data Security And Employees, Elizabeth Rowe
Trade Secrets, Data Security And Employees, Elizabeth Rowe
Chicago-Kent Law Review
This essay argues that data security is important to the protection of trade secret information, and that trusted employees on the inside pose the biggest threat to the protection of trade secrets. While investments in technical measures such as firewalls and encryption are important, it is also necessary for companies to consider the internal threats from employees when creating corporate security programs. Ultimately, a more comprehensive approach that includes technical and human elements, as well as consideration of inside and outside threats is likely to be more effective in the battle to secure data.
Coding Privacy, Lilian Edwards
Coding Privacy, Lilian Edwards
Chicago-Kent Law Review
Lawrence Lessig famously and usefully argues that cyberspace is regulated not just by law but also by norms, markets and architecture or "code." His insightful work might also lead the unwary to conclude, however, that code is inherently anti-privacy, and thus that an increasingly digital world must therefore also be increasingly devoid of privacy. This paper argues briefly that since technology is a neutral tool, code can be designed as much to fight for privacy as against it, and that what matters now is to look at what incentivizes the creation of pro- rather than anti-privacy code in the mainstream …
Peer-To-Peering Beyond The Horizon: Can A P2p Network Avoid Liability By Adapting Its Technological Structure?, Matthew G. Minder
Peer-To-Peering Beyond The Horizon: Can A P2p Network Avoid Liability By Adapting Its Technological Structure?, Matthew G. Minder
Chicago-Kent Law Review
Peer-to-peer networks are often used to infringe copyrights, but they also serve some legitimate purposes consistent with copyright law. In attempting to find a satisfactor solution, this note develops and analyzes two models that future peer-to-peer networks could employ to attempt to avoid liability for copyright infringement. The note then analyzes the law, applies the two models to the relevant legal tests, and analyzes whether a peer-to-peer network operating on each model could avoid liability for copyright infringement. It concludes that modifying their technological structure may help peer-to-peer networks avoid liability, but that some risks remain.
Willful Patent Infringement After In Re Seagate: Just What Is "Objectively Reckless" Infringement?, Randy R. Micheletti
Willful Patent Infringement After In Re Seagate: Just What Is "Objectively Reckless" Infringement?, Randy R. Micheletti
Chicago-Kent Law Review
Recently the United States Court of Appeals for the Federal Circuit dramatically change the rules for proving willful patent infringement—and justifying enhanced damages—in In re Seagate Technology. A patentee alleging willful infringement must now first prove "by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." He must then show that the objectively defined risk was "either known or so obvious that it should have been known to the accused infringer." The court expressly delegated substantive development of the new test to future cases. Because district …