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Full-Text Articles in Law

The Value Of Accuracy In The Patent System, Stephen Yelderman Jan 2017

The Value Of Accuracy In The Patent System, Stephen Yelderman

Journal Articles

Because it must rely on imperfect information, the patent system will inevitably make mistakes. To determine how the system ought to err in cases of uncertainty—and whether a given mistake is worth correcting—scholars have composed a simple picture of the consequences of error in either direction. On the one hand, erroneous patent awards impose unjustified costs. On the other hand, erroneous patent denials discourage successful inventors and reduce incentives to create in the future. The result is an essentially indeterminate balancing, in which policies of overly liberal awards drive up costs, and policies of overly cautious awards drive down incentives. …


Fault Lines In Trademark Default Judgments, David S. Welkowitz Nov 2015

Fault Lines In Trademark Default Judgments, David S. Welkowitz

Journal of Intellectual Property Law

No abstract provided.


Intending To Confuse: Why Preponderance Is The Proper Burden Of Proof For Intentional Trademark Infringements Under The Lanham Act, Kelly Collins Jan 2014

Intending To Confuse: Why Preponderance Is The Proper Burden Of Proof For Intentional Trademark Infringements Under The Lanham Act, Kelly Collins

Oklahoma Law Review

No abstract provided.


Not (Necessarily) Narrower: Rethinking The Relative Scope Of Copyright Protection For Designs, Sarah Burstein Apr 2013

Not (Necessarily) Narrower: Rethinking The Relative Scope Of Copyright Protection For Designs, Sarah Burstein

IP Theory

No abstract provided.


Is It Time For A Rule 11 For The Patent Bar?, Ralph D. Clifford Jan 2013

Is It Time For A Rule 11 For The Patent Bar?, Ralph D. Clifford

Faculty Publications

The failure to require the patent bar to be completely candid in its dealings with the U.S. Patent and Trademark Office (“PTO”) is one of the reasons behind the patent quality problem in the United States. Although PTO regulations impose a duty of candor on both the patent applicant and his or he attorney, this duty of disclosure is limited to matters already known by the parties. The regulations impose no duty to become educated about the technology that underlies a claimed invention. Indeed, there are rational reasons why a patent applicant might seek an uneducated attorney and order him …


“Reverse” Patent Declaratory Judgment Actions: A Proposed Solution For Medtronic, Megan M. La Belle Jan 2013

“Reverse” Patent Declaratory Judgment Actions: A Proposed Solution For Medtronic, Megan M. La Belle

Scholarly Articles

The United States Supreme Court is scheduled to hear arguments in Medtronic, Inc. v. Boston Scientific Corp. – the first patent case of the term – on November 5, 2013. The issue in Medtronic is whether the burden of proof in patent declaratory judgment actions should be on the patent owner to prove infringement or on the accused infringer to prove non-infringement. Ordinarily, the patent owner bears the burden of proving infringement and the declaratory posture of a suit does not shift that burden. In Medtronic, however, the Federal Circuit created an exception for “MedImmune-type” suits, meaning declaratory judgment actions …


Patent Infringement As Criminal Conduct, Jacob S. Sherkow Jan 2012

Patent Infringement As Criminal Conduct, Jacob S. Sherkow

Michigan Telecommunications & Technology Law Review

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court's recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent--willful blindness--into the statute for patent infringement, a civil offense. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to …


I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett Jan 2012

I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett

Law Student Publications

First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need …


Benay V. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, Brian Casido Jun 2011

Benay V. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, Brian Casido

Golden Gate University Law Review

This Note examines Benay v. Warner Bros. Entertainment, Inc., and the substantial-similarity standard under a California breach of an implied-in-fact contract claim and a federal copyright infringement claim. The standard used in Benay will hinder the free flow of ideas by deterring producers from accepting an author’s screenplay for fear of breaching an implied-in-fact contract. Part I of this Note summarizes the history and development of the protection of rights to creative works. Part II provides the facts and procedural history of Benay v. Warner Bros. Entertainment, Inc. Part III analyzes and criticizes the Ninth Circuit’s holding in Benay …


Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner Jun 2011

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 …


Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow Apr 2010

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Faculty Publications

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …


Proving Dilution, Lee Goldman Jan 2004

Proving Dilution, Lee Goldman

University of Miami Law Review

No abstract provided.


The Secret Of Our Success: The Sixth Circuit Interprets The Proof Requirement Under The Federal Trademark Dilution Act In V Secret Catalogue V. Moseley, Jennifer Hemerly Jan 2002

The Secret Of Our Success: The Sixth Circuit Interprets The Proof Requirement Under The Federal Trademark Dilution Act In V Secret Catalogue V. Moseley, Jennifer Hemerly

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


Is Proof Of Access Still Required - Proving Copyright Infringement Using The Strikingly Similar Doctrine: An Analysis Of The Fourth Circuit's Decision In Bouchat V. Baltimore Ravens, Inc., Henry J. Lanzalottie Jan 2002

Is Proof Of Access Still Required - Proving Copyright Infringement Using The Strikingly Similar Doctrine: An Analysis Of The Fourth Circuit's Decision In Bouchat V. Baltimore Ravens, Inc., Henry J. Lanzalottie

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


Trade Dress: Who Should Bear The Burden Of Proving Or Disproving Functionality In A Section 43(A) Infringement Claim?, Danielle Rubano Oct 1995

Trade Dress: Who Should Bear The Burden Of Proving Or Disproving Functionality In A Section 43(A) Infringement Claim?, Danielle Rubano

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.