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Copyright Under Siege: An Economic Analysis Of The Essential Facilities Doctrine And The Compulsory Licensing Of Copyrighted Works, 17 Alb. L.J. Sci. & Tech. 481 (2007), Daryl Lim
UIC Law Open Access Faculty Scholarship
No abstract provided.
Messages From The Front: Hard Earned Lessons On Information Security From The Ip Wars, 16 Mich. St. J. Int'l L. 71 (2007), Doris E. Long
Messages From The Front: Hard Earned Lessons On Information Security From The Ip Wars, 16 Mich. St. J. Int'l L. 71 (2007), Doris E. Long
UIC Law Open Access Faculty Scholarship
Cyberspace is often a battlefield with a wide array of armies posed to challenge one another across the increasing array of rhetoric and technology that has made it such a potent arena for global digital commerce. Perry Barlow's infamous demand that cyberspace be left to its own devices because of its unique unregulated nature may have been answered by Larry Lessig's reply that code may in fact be used to regulate cyberspace, but the reality is that social norming demands, the evanescence of technological controls, and the perceived utility of illicit conduct utilizing the internet make any regulation problematic at …
The Troll Next Door, 6 J. Marshall Rev. Intell. Prop. L. 292 (2007), Jennifer Kahaulelio Gregory
The Troll Next Door, 6 J. Marshall Rev. Intell. Prop. L. 292 (2007), Jennifer Kahaulelio Gregory
UIC Review of Intellectual Property Law
The term Patent Troll is increasingly permeating news headlines. This comment explains where the term came from and how the changing landscape of patent enforcement has contributed to the evolution of the Patent Troll. Some have suggested that segregating Patent Trolls from other patent enforcers will solve many of the patent system’s woes. This comment analyzes proposed ways of distinguishing Patent Trolls and reveals them all as prejudicial and ineffective. The use of the term Patent Troll is a mask for underlying fears based on real shortcomings in the patent system, which need to be addressed.
Toward A Pluralistic Theory On An Efficacious Patent Institution, 6 J. Marshall Rev. Intell. Prop. L. 220 (2007), Nari Lee
UIC Review of Intellectual Property Law
Time and time again, scholars have attempted to assess the efficacy of the intellectual property institution; these attempts have created a vast amount of literature. As impressive as the volume of work is that has been generated on this issue, so is the absence of a generally applicable theory of intellectual property, which either claims or disclaims the efficacy of the intellectual property institution. This article questions the existence of a general definition of efficiency that is applicable to the assessment of the patent institution. While it is true that the efficiency as applied to specific cases may be definable …
Hollywood Vs. The People Of The United States Of America: Regulating High-Definition Content And Associated Anti-Piracy Copyright Concerns, 6 J. Marshall Rev. Intell. Prop. L. 525 (2007), Timothy M. Cho
UIC Review of Intellectual Property Law
With Blu-ray Disc (“BD”) and HD-DVD poised to take over the $24.6 billion home video market, the issue of copy protection is the most significant obstacle to overcome before this new technological era can be fully ushered in. This comment proposes that impending Advanced Access Content System (“AACS”) implementation and Digital Millennium Copyright Act (“DMCA”) enforcement are not effective remedies for protecting copyrighted material and curbing rampant piracy in connection with BD and HD-DVD. Limiting the proposed scope of the DMCA, rejecting analog hole legislation, and creating low cost digital marketplace alternatives to illicit activity are the best ways to …
The Preserve Access To Affordable Generics Act: Will Congress's Response To Reverse Payment Patent Settlements Enhance Competition In The Pharmaceutical Market?, 7 J. Marshall Rev. Intell. Prop. L. 150 (2007), Reza Bagherian
UIC Review of Intellectual Property Law
In response to the Supreme Court’s failure to grant writ of certiorari to Federal Trade Commission v. Schering-Plough Corp., Congress proposed the Preserve Access to Affordable Generics Act to once again amend the Hatch-Waxman Act of 1984. Traditionally, the courts have used two antitrust standards, the rule of reason and the per se illegal rule, to determine whether a reverse payment patent settlement restrains trade. In Schering-Plough, the Eleventh Circuit articulated a third standard and held the reverse payment settlements between a pioneer drug company and two generic drug companies valid. This article proposes that traditional analysis of the rule …
Application Service Providing, Copyright, And Licensing, 25 J. Marshall J. Computer & Info. L. 79 (2007), Michael P. Widmer
Application Service Providing, Copyright, And Licensing, 25 J. Marshall J. Computer & Info. L. 79 (2007), Michael P. Widmer
UIC John Marshall Journal of Information Technology & Privacy Law
Application Service Providing ("ASP"), where a vendor hosts a software application on her server and grants customers access to the application over a network -- without the software application itself being installed on the user’s computer -- is used by many, e.g. in the form of Web based e-mail services, and grows ever more important. This article argues that although ASP mainly raises questions (i) that come up in the context of traditional use of computer programs; or (ii) that have been addressed in the context of online use of works other than software, ASP has significantly different copyright implications …
Ict And Employer-Employee Power Dynamics: A Comparative Perspective Of United States' And Netherlands' Workplace Privacy In Light Of Information And Computer Technology Monitoring And Positioning Of Employees, 25 J. Marshall J. Computer & Info. L. 37 (2007), Colette Cuijpers
UIC John Marshall Journal of Information Technology & Privacy Law
Employees can cause harm to their employers through Information and Computer Technology (ICT) in employment relationships; for example, through surfing for adult material on the Internet or leaking company secrets via a mobile phone. Employers have responded to this development by introducing various surveillance systems. Besides well-known forms of Internet and e-mail surveillance, positioning systems are becoming a new trend. The influence these systems have on the employment relationship can be far-reaching, as they offer the employer an insight into the employee’s whereabouts, outside the company premises as well as outside company hours. As a consequence, the boundaries between the …
The Fda And The Future Of The Brain-Computer Interface: Adapting Fda Device Law To The Challenges Of Human-Machine Enhancement, 25 J. Marshall J. Computer & Info. L. 117 (2007), Eric Chan
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Slingbox: Copyright, Fair Use, And Access To Television Programming Anywhere In The World, 25 J. Marshall J. Computer & Info. L. 187 (2007), Shekar Sathyanarayana
Slingbox: Copyright, Fair Use, And Access To Television Programming Anywhere In The World, 25 J. Marshall J. Computer & Info. L. 187 (2007), Shekar Sathyanarayana
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Angling For A Fair Standard: A Recommendation For A Narrowly Tailored Non-Profit Exemption To The Closed Captioning Requirements, 25 J. Marshall J. Computer & Info. L. 165 (2007), Joshua Pila
UIC John Marshall Journal of Information Technology & Privacy Law
In late 2006, the FCC’s Consumer and Government Affairs Bureau (“CGB”) issued the Anglers Order, providing a wholesale exemption for non-profit entities seeking to avoid the strictures of the Commission’s closed captioning rules. Disability advocates quickly criticized the Anglers Order on administrative law and communications law grounds. This paper avoids administrative law and communications law issues, but instead criticizes the Anglers Order on non-profit law and policy grounds. The paper then recommends and supports a post-application, narrowly-tailored financial test, automatically exempting A) non-profit organizations, with B) less than $25,000 in annual revenue, who C) receive no financial compensation for airing …
From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, 25 J. Marshall J. Computer & Info. L. 1 (2007), Robert D. Sprague
From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, 25 J. Marshall J. Computer & Info. L. 1 (2007), Robert D. Sprague
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, 40 J. Marshall L. Rev. 425 (2007), Mary Marsh Zulack
If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, 40 J. Marshall L. Rev. 425 (2007), Mary Marsh Zulack
UIC Law Review
No abstract provided.
Will Youtube Sail Into The Dmca's Safe Harbor Or Sink For Internet Piracy?, 6 J. Marshall Rev. Intell. Prop. L. 550 (2007), Michael Driscoll
Will Youtube Sail Into The Dmca's Safe Harbor Or Sink For Internet Piracy?, 6 J. Marshall Rev. Intell. Prop. L. 550 (2007), Michael Driscoll
UIC Review of Intellectual Property Law
Is YouTube, the popular video sharing website, a new revolution in information sharing or a profitable clearing-house for unauthorized distribution of copyrighted material? YouTube’s critics claim that it falls within the latter category, in line with Napster and Grokster. This comment, however, determines that YouTube is fundamentally different from past infringers in that it complies with statutory provisions concerning the removal of copyrighted materials. Furthermore, YouTube’s central server architecture distinguishes it from peer-to-peer file sharing websites. This comment concludes that any comparison to Napster or Grokster issuperficial, and overlooks the potential benefits of YouTube to copyright
What Does Forum Shopping In The Eastern District Of Texas Mean For Patent Reform?, 6 J. Marshall Rev. Intell. Prop. L. 570 (2007), Alisha Kay Taylor
What Does Forum Shopping In The Eastern District Of Texas Mean For Patent Reform?, 6 J. Marshall Rev. Intell. Prop. L. 570 (2007), Alisha Kay Taylor
UIC Review of Intellectual Property Law
The Eastern District of Texas has recently become a rocket docket for patent litigation owing to the adoption of Judge T. John Ward’s local patent rules. However, the disproportional amount of patent cases filed in the Eastern District is evidence of plaintiffs forum shopping. Notwithstanding the benefit of forum shopping in creating, by default, patent law expertise in certain district courts, the existence of forum shopping illuminates the reality that patent law application is not uniformly applied throughout the district courts. This comment proposes a mandatory post-grant opposition proceeding occurring at the Board of Patent Appeals and Interferences of the …
A Foreword To: A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 590 (2007), Edward D. Manzo
A Foreword To: A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 590 (2007), Edward D. Manzo
UIC Review of Intellectual Property Law
In KSR International Co. v. Teleflex Inc., the Supreme Court adhered to its prior views that a constitutional standard applied in determining whether an invention is “obvious.” Further, the Federal Circuit’s teaching-suggestion-motivation (“TSM”) test, which stipulated that an invention is not obvious unless some teaching, suggestion, or motivation to combine the elements of the invention exists, cannot replace or limit the constitutional standard. KSR eliminated the Federal Circuit’s requirement, holding that the TSM test is only one way to find an invention obvious and that a common sense approach should be used. KSR also noted that all persons skilled in …
A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 595 (2007), William T. Mcgrath, Edward D. Manzo, James F. Holderman, Matthew F. Kennelly, Meredith Martin Addy, Patrick G. Burns, Bradford P. Lyerla, George P. Mcandrews, David L. Schwartz, Constantine L. Trela Jr.
A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 595 (2007), William T. Mcgrath, Edward D. Manzo, James F. Holderman, Matthew F. Kennelly, Meredith Martin Addy, Patrick G. Burns, Bradford P. Lyerla, George P. Mcandrews, David L. Schwartz, Constantine L. Trela Jr.
UIC Review of Intellectual Property Law
In KSR International Co. v. Teleflex Inc., the Supreme Court considered what test applies to determine whether an invention is “obvious.” The Court ruled that the teaching-suggestion- motivation (“TSM”) test, developed over the years by the Federal Circuit to defend against hindsight reconstruction, is only one method a court or patent examiner may use when addressing obviousness. The Court’s holding overturned Federal Circuit precedent, which required a finding of non-obviousness unless a teaching, suggestion, or motivation to combine was established. The panel discussion brings together leadings jurists; former law clerks of the Supreme Court, the Federal Circuit, and other courts; …
An Afterword To: A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 633 (2007), Constantine L. Trela, Jr.
An Afterword To: A Panel Discussion On Obviousness In Patent Litigation: Ksr International V. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 633 (2007), Constantine L. Trela, Jr.
UIC Review of Intellectual Property Law
In KSR International v. Teleflex, Inc., the Supreme Court may have sparked the question: How should obviousness be decided as a procedural matter? KSR reaffirmed the holding in Graham v. John Deere Co.—that obviousness is a legal determination decided against the background of particular facts. However, KSR moved beyond Graham and stated on a number of occasions that “the court” is to make various determinations. KSR’s language logically suggests that the jury is to answer interrogatories on specific factual questions and then the judge is to decide the obviousness issue based on those answers. How the Federal Circuit and the …
Leveling The Patent Playing Field, 6 J. Marshall Rev. Intell. Prop. L. 636 (2007), Peter N. Detkin
Leveling The Patent Playing Field, 6 J. Marshall Rev. Intell. Prop. L. 636 (2007), Peter N. Detkin
UIC Review of Intellectual Property Law
While large companies continue to thrive on pervasive technological advancements, small inventors have been limited by their inability to exploit their patents. Patent portfolio licensing created a pioneering way to increase the utility of patents; however, in practice this business model has typically favored powerful players in the technology industry. A new market has emerged based on innovative business models which favor small inventors. This market seeks to aggregate and distribute patents to companies that infringe on intellectual property or that want to draw on it as a source. By matching patent owners with patent users, this market may enable …
Avoiding The "Fifth Beatle" Syndrome: Practical Solutions To Minimizing Joint Inventorship Exposure, 6 J. Marshall Rev. Intell. Prop. L. 645 (2007), Andrew B. Dzeguze
Avoiding The "Fifth Beatle" Syndrome: Practical Solutions To Minimizing Joint Inventorship Exposure, 6 J. Marshall Rev. Intell. Prop. L. 645 (2007), Andrew B. Dzeguze
UIC Review of Intellectual Property Law
Inventorship disputes appear to be proliferating. This is not surprising in light of the 1993 relaxation of the standards for joint inventorship. Although the vast majority of claims fail, the handful of cases indicating successful inventorship claims can be quite lucrative, which makes it reasonable to expect the upward trend in number of cases to continue. Moreover, the lack of clarity on certain key aspects of inventorship law is apt to encourage further claims. This article begins, as a cautionary tale of sorts: an analysis of the unclear aspects of inventorship law. This includes the as yet unresolved variations in …
Patent Reform, Injunctions, And Equitable Principles: A Triangle Of Changes For The Future, 6 J. Marshall Rev. Intell. Prop. L. 671 (2007), Matthew J. May
Patent Reform, Injunctions, And Equitable Principles: A Triangle Of Changes For The Future, 6 J. Marshall Rev. Intell. Prop. L. 671 (2007), Matthew J. May
UIC Review of Intellectual Property Law
In eBay v. MercExchange, the Supreme Court held the Federal Circuit could no longer utilize their long-standing “general rule” that an injunction should follow the finding of patent infringement. The Supreme Court held that courts should utilize a set of rules known as the four-factor test, which utilizes traditional principals of equity. Concurrently, Congress has been debating patent reform with one of the topics being the use of injunctive relief as a remedy for patent infringement. These two changes could potentially have a significant effect on the technological and economic landscape of patents in the future. It now may be …
What The Pct Can Learn From Two African Systems, 6 J. Marshall Rev. Intell. Prop. L. 693 (2007), Zion H. Park
What The Pct Can Learn From Two African Systems, 6 J. Marshall Rev. Intell. Prop. L. 693 (2007), Zion H. Park
UIC Review of Intellectual Property Law
The purpose and goal of patent law is to help society by encouraging innovation. While the Patent Cooperation Treaty (“PCT”) has made international patent procurement easier and more accessible, the current system is still plagued with redundancies and inefficiencies. These flaws are barriers to patent offices and individual patentees, hindering innovation and the growth of developing nations. Ultimately, these problems are hindrance to society, contradicting the goal of patent law. This comment compares the PCT to two similar but less prominent African regional patent systems: African Regional Industrial Property Organization (“ARIPO”) and African Industrial Property Convention (“OAPI”). ARIPO and OAPI …
Reason Or Madness: A Defense Of Copyright's Growing Pains, 7 J. Marshall Rev. Intell. Prop. L. 1 (2007), Marc H. Greenberg
Reason Or Madness: A Defense Of Copyright's Growing Pains, 7 J. Marshall Rev. Intell. Prop. L. 1 (2007), Marc H. Greenberg
UIC Review of Intellectual Property Law
A growing conflict between the creators and owners of expressive works protected by copyright law and the community of users and distributors of those works has focused on whether the law is so restrictive that it no longer meets the constitutional mandate that intellectual property law should serve to promote the growth and development of useful and expressive works. Has the scope of copyright's growth been reasonable, or are its restrictions madness, and harmful to the development and distribution of art? This article explores the seven leading criticisms leveled against copyright's expansion, and examines one recent effort at legislative reform …
Injunctions In Patent Cases After Ebay, 7 J. Marshall Rev. Intell. Prop. L. 44 (2007), Edward D. Manzo
Injunctions In Patent Cases After Ebay, 7 J. Marshall Rev. Intell. Prop. L. 44 (2007), Edward D. Manzo
UIC Review of Intellectual Property Law
The United States Constitution gives Congress the power to grant to inventors exclusive rights to their inventions. Accordingly, 35 U.S.C. § 154(a) states that every patent grants to the patentee exclusive rights to make and use their inventions, and 35 U.S.C. § 283 provides that a court may grant injunctions in accordance with the principles of equity. The Federal Circuit developed a general standard that a permanent injunction should issue, except in extraordinary standards, after a patent is judicially declared valid. However, in May 2006, the Supreme Court overruled that standard in eBay Inc. v. MercExchange, L.L.C., declaring that the …
Painstaking Semantics: Selecting Website Trade Dress Elements To Survive A Copyright Preemption Challenge, 7 J. Marshall Rev. Intell. Prop. L. 97 (2007), J. Scott Anderson
Painstaking Semantics: Selecting Website Trade Dress Elements To Survive A Copyright Preemption Challenge, 7 J. Marshall Rev. Intell. Prop. L. 97 (2007), J. Scott Anderson
UIC Review of Intellectual Property Law
The intersection between trade dress law and copyright law must be understood when seeking trade dress protection for elements that may fall within the subject matter of copyright. The technological elements that create the look and feel of a website may include both trade dress elements and copyrightable works. Website owners are beginning to rely on the protections of trade dress law instead of or in addition to copyright law when the look and feel of a website is imitated by a competitor. Asserting trade dress protection for website look and feel requires careful pleading and will provoke a variety …
Step-Plus-Function: Just What Have We Stepped Into?, 7 J. Marshall Rev. Intell. Prop. L. 117 (2007), Paul R. Kitch
Step-Plus-Function: Just What Have We Stepped Into?, 7 J. Marshall Rev. Intell. Prop. L. 117 (2007), Paul R. Kitch
UIC Review of Intellectual Property Law
While most attorneys have heard of means-plus-function, most have not heard of or given much thought to its sibling, step-plus-function. Both claims arise under the same section of the patent laws, namely 35 U.S.C. § 112, ¶ 6. While means-plus-function limitations are directed to structural limitations and most often appear in apparatus claims, step-plus-function limitations are directed to steps and most often appear in method claims. Means-plus-function limitations generally arise when the patentee chooses to recite a “means for” performing a specified or recited function rather than reciting the structure or material that performs that function. Step-plus-function limitations, on the …
Yesterday's Technology, Tomorrow: How The Government's Treatment Of Intellectual Property Prevents Soldiers From Receiving The Best Tools To Complete Their Mission, 7 J. Marshall Rev. Intell. Prop. L. 171 (2007), Daniel Larson
UIC Review of Intellectual Property Law
The Department of Defense is currently entrenched in a procurement system that does not respect the intellectual property of its contractors. This, in turn, has led to research and development firms’ increasing reluctance to contract with the Department of Defense. As a result of this reluctance, the United States has increasingly relied upon weapons systems that, in many cases, have not significantly evolved since the Vietnam War. In order to revive the United States’ flagging military technology sector Congress should look to 28 U.S.C. § 1498 and provisions of the Bayh-Dole Act in order to encourage the private sector’s creation …
The Proliferation Of Tax Strategy Patents: Has Patenting Gone Too Far?, 7 J. Marshall Rev. Intell. Prop. L. 202 (2007), Anish Parikh
The Proliferation Of Tax Strategy Patents: Has Patenting Gone Too Far?, 7 J. Marshall Rev. Intell. Prop. L. 202 (2007), Anish Parikh
UIC Review of Intellectual Property Law
Many people employ an accountant or tax attorney to assist them with the paying of their taxes. Tax practitioners may utilize various tax strategies in determining how a taxpayer should allocate his money. These tax strategies fall into the category of business methods. It was widely held that patents could not be granted for methods of doing business; however, this changed in 1998 when the Court of Appeals for the Federal Circuit upheld the patentability of an investment structure in State Street Bank & Trust Company v. Signature Financial Group, Inc. More recently, in Wealth Transfer Group v. Rowe, the …
The Crossroads Of Patentability & Validity: Why Resolving Congressional Intent Will Not Fix Functional Claims, 7 J. Marshall Rev. Intell. Prop. L. 218 (2007), Nathaniel V. Riley
The Crossroads Of Patentability & Validity: Why Resolving Congressional Intent Will Not Fix Functional Claims, 7 J. Marshall Rev. Intell. Prop. L. 218 (2007), Nathaniel V. Riley
UIC Review of Intellectual Property Law
Functional claims have caused many headaches for academics, judges and practitioners who have struggled to define precisely what constitutes “functional” claim language and to determine the proper scope afforded to broad means-plus-function claim elements. The debate between academics and judges regarding functional claim interpretation has typically focused on Congressional intent behind the statute, specifically whether 35 U.S.C. § 112, ¶ 6 was intended solely as a claim interpretation tool or only as means for narrowing functional claims during an infringement analysis. The Federal Circuit famously adopted a hybrid approach in In re Donaldson, but since then several authors have levied …
Who Is Really Undermining The Patent System – “Patent Trolls” Or Congress?, 6 J. Marshall Rev. Intell. Prop. L. 185 (2007), Raymond P. Niro
Who Is Really Undermining The Patent System – “Patent Trolls” Or Congress?, 6 J. Marshall Rev. Intell. Prop. L. 185 (2007), Raymond P. Niro
UIC Review of Intellectual Property Law
“Patent troll” has entered the legal lexicon, stirring up heated debates over fundamental issues of patent rights. This article discusses the etymology of the term “patent troll” —from its beginnings as a deliberately derogatory term thrust forward as a defense to weaken the enforcement of patents against large corporations to its current manifestation as a call for patent reform. Interestingly, statistics show the “patent troll” problem is grossly overstated compared to the contentions of the corporate world. Moreover, enforcement of patents stimulates small business growth, innovation, and dissemination of knowledge to the public. This article suggests Congressional diversion of PTO …