Law Commons^™

Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm

Michigan Telecommunications & Technology Law Review

Before the unanimous decision in eBay v. MercExchange, patent holders were almost always granted an injunction against an infringer. In fact, the Federal Circuit, in deciding eBay, noted that, upon a finding of infringement, an injunction would issue unless there were extraordinary circumstances. The Court, in a brief opinion, disagreed with the Federal Circuit and explained that the injunction issue in a patent case must be analyzed under the traditional four-factor test.[...] Is the four-factor test fairer or better than the Federal Circuit's near-automatic injunction rule? It is certainly more difficult to administer a factor test as compared to a …

Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam J. Kolber

Vanderbilt Law Review

Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President's Council on Bioethics released a report, entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Council acknowledged the potential benefits of memory dampening, some Council members were concerned that it may: (1) discourage us from authentically coping with trauma, (2) tamper with personal identity, (3) …

Enhancing The Senses: How Technological Advances Shape Our View Of The Law, Steven Goldberg

West Virginia Law Review

No abstract provided.

A Tough Pill To Swallow: Does The First Amendment Prohibit Wv From Regulating Pharmaceutical Companies' Advertising Expenses To Lower The Cost Of Prescription Drugs?, Brienne Taylor Greiner

West Virginia Law Review

No abstract provided.

The Crtc's Enforcement Of Canada's Broadcast Legislation: 'Concern', 'Serious Concern' And 'Grave Concern', Monica Auer

Canadian Journal of Law and Technology

This paper describes results from a quantitative study of the enforcement by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) over the last several decades of Canada’s broadcasting legislation and its own regulations. Established by Parliament in 1968, the CRTC is a quasi-judicial regulatory agency that administers Canada’s Broad- casting Act, 1991 as well as the nation’s telecommunications legislation. Parliament has accorded the CRTC a broad range of discretionary powers over broadcast licensees, from granting, denying or revoking licences, to issuing mandatory orders. It is one of many federal regulatory agencies that administer and enforce Parliament’s legislation.

Step In The Wrong Direction: The Impact Of The Legislative Protection Of Technological Protection Measures On Fair Dealing And Freedom Of Expression, Graham Reynolds

Canadian Journal of Law and Technology

This paper will investigate whether legislation granting protection to TPMs infringes the freedom of expression (s. 2(b)) guarantee as contained in the Canadian Charter of Rights and Freedoms. This paper will proceed in five parts. Part I will discuss Bill C-60 and the legislative protection of TPMs in Canada. Part II will discuss the effect of TPMs on fair dealing. Part III will analyze whether the freedom of expression guarantee can be used to challenge provisions in the Copyright Act. Part IV will evaluate whether amendments to the Copyright Act granting protection to TPMs are consistent with the freedom of …

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Electronic Trespass In Canada: The Protection Of Private Property On The Internet, James Macdonald

Canadian Journal of Law and Technology

This paper argues that Canadian courts can, and should, adopt electronic trespass as a viable cause of action for the protection of property rights on the Internet. Of course, this conclusion presupposes that property rights in fact exist on the Internet. While American courts have accepted the existence of property rights on the Internet without any real controversy, a significant body of criticism has developed around American jurisprudence. Part III examines the critiques levelled against the assumption of property rights inherent in electronic trespass, and argues that there are property rights that need to be protected on the Internet. Part …

Biopiracy And Beyond: A Consideration Of Socio-Cultural Conflicts With Global Patent Policies, Cynthia M. Ho

University of Michigan Journal of Law Reform

This Article provides afresh and multi-dimensioned approach to a long-standing claim of biopiracy patents made by developing countries and communities. The basic principles of patent law and policy are first established to provide a foundation from which to evaluate the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric from reality in examining biopiracy allegations from the perspective of national patent laws, as well as international agreements. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that …

Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng

Michigan Law Review

For over twenty years, and particularly since the Supreme Court's Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of Men …

Science, Humanity, And Atrocity: A Lawyerly Examination, Steven D. Smith

Michigan Law Review

Joseph Vining's reflection on (as the subtitle indicates) the claims of science and humanity begins with a terse but disturbing recitation of these and similar scientific experiments conducted on human beings during the twentieth century in Manchuria, Nazi Germany, and Pol Pot's Cambodia. The incidents are conveyed through quotations, sometimes of the coldly clinical prose that the researchers themselves chose as most suitable for their purposes. These quotations are juxtaposed against others from an array of distinguished scientists and philosophers explaining the naturalistic cosmology that, in the view of these thinkers, modern science has given us: it is a stark, …

Ests Under Canadian Patent Law: Useful Or Not?, Natalie C. Bellefeuille

Canadian Journal of Law and Technology

The following discussion will examine the utility requirement for patentability in the context of EST patents. Part I will provide background information regarding the utility requirement under patent law and will explain why it has been difficult to apply to ESTs. Part II will briefly examine how other jurisdictions, in particular the United States, have addressed the difficul- ties associated with applying the current utility require- ment to biological materials, in particular ESTs. Part III will look at how Canadian courts have interpreted and applied the utility requirement for patentability, and will suggest that ESTs have sufficient value to the …

E-Commerce Legislation And Materials In Canada: Lois Sur Le Commerce Électronique Au Canada Et Documents Connexes By Sunny Handa, Claude Marseille & Martin Sheehan (Markham, Ont.: Lexisnexis Butterworths, 2005), John D. Gregory

Canadian Journal of Law and Technology

This hefty volume is a useful compendium of the basic source materials for the law of electronic commerce in Canada. It offers the text of all the general-purpose legislation that removes legal barriers to the use of electronic communications, for all jurisdictions in the country. It then takes a dozen related areas of law, from domain names to taxation, from competition law to consumer protection, from security to standards, and offers a quick overview and the key documents applicable to each. In each case the commentary is in English then in French, and where the texts are available in both …

It Waste Management In Canada: From Cost Recovery To Resource Conservation?, Meinhard Doelle

Canadian Journal of Law and Technology

The volume, composition and management of solid waste generated by households, governments, the commercial sector, and industry have all changed dramatically over the past century. Household waste contained mainly organic material a hundred years ago. Today, both residential and commercial waste is a complex mix of organics, plastics, paper products, metals and a variety of toxic material. Historically, individual households looked after their own waste, through efforts such as composting and burning. Over the past century, with significant increases in volume of waste generated, municipalities have taken over primary responsibility for solid waste management, initially mainly for aesthetic and sanitary …

Personal Medical Information: Privacy Or Personal Data Protection?, Wilhelm Peekhaus

Canadian Journal of Law and Technology

Some of the existing literature concerning the privacy of health information seems to suggest that medical information has a particularly special nature; either through its oft-cited association with dignity or the need for its ‘‘unobstructed’’ use by health care practitioners for a variety of reasons. It is against such a backdrop that this paper will review and compare a number of legislative mechanisms that have been designed to meet the challenge of safeguarding the privacy of personal information without completely hindering the continued flow of information required by economic and health care systems. An attempt will be made to situate …

Producers And Consumers In Eu E-Commerce Law, Banu Sit

Canadian Journal of Law and Technology

Rapid growth of technology in the last decades has given rise to electronic commerce (e-commerce) as a new mode of commerce. This new commerce environment has many characteristics that affect commercial relationships and parties. Of these characteristics, global and borderless commercial activity and the intangible nature of communication can be singled out.

From a legal perspective, e-commerce has developed new modes, of contract formation, performance of contracts for intangible goods, as well as payment. In this new borderless and transient sphere, certain interests of parties involved in commercial activities as buyers or sellers are in need of protection. In particular, …

Unnecessary Indeterminacy: Process Patent Protection After Kinik V. Itc, John M. Eden

Duke Law & Technology Review

In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district courts do not apply to exclusion actions before the International Trade Commission. This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit’s decision is inconsistent with the ITC’s longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court’s suggestion that the ITC should be given broad discretion to resolve conflicts …

Patent Misuse In Patent Pool Licensing: From National Harrow To “The Nine No-Nos” To Not Likely, Daniel P. Homiller

Duke Law & Technology Review

Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit’s decision raises the question of just how much remains of the doctrine of …

Barriers To Innovation: Intellectual Property Transaction Costs In Scientific Collaboration, Megan Ristau Baca

Duke Law & Technology Review

The institution of university science research has evolved over the past century, from one of open science and free information to one of competition and jealously guarded intellectual property rights. This iBrief analyzes the background factors driving the evolution of the institution of science, evaluates the net effects on the progress of science, and considers potential short-term solutions to alleviate the legal transaction costs necessary for scientific collaboration.

Technology Of Access: Allowing People Of Age To Vote For Themselves, The, Ted Selker

McGeorge Law Review

No abstract provided.

The Universal Declaration On Bioethics And Human Rights: Promoting International Discussion On The Morality Of Non-Therapeutic Research On Children, Anna Gercas

Michigan Journal of International Law

After describing the Declaration and its drafting history, this Note will summarize several international, national, and regional guidelines regarding children as research subjects. The Note then argues for a prohibition of non-therapeutic research on children and concludes that international human rights law offers the most appropriate basis for the development of regulations on human experimentation.

Beyond Content: The Emergence Of Video Games And Their Diverse Effects On Legal Normativity As Seen Through The Lens Of Jean Baudrillard, Stephen Orr

Canadian Journal of Law and Technology

Current legal discourse about video games focuses primarily on freedom of speech issues relating to the content of games. Using the work of Jean Baudrillard (and to a small extent Marshall McLuhan) this article reconsiders how we should conceptualize the regulation of video games. Baudrillard's theories are particularly interesting to explore as his pessimistic reflections about technology challenge us to contemplate how profoundly the form of new communicative technologies, such as video games, shape human interactions. Appealing to both theorists' belief that "the medium is the message", this article argues that we should be wary of focusing legal energy exclusively …

Intellectual Property Rights In The Internet Era: The New Frontier, 5 J. Marshall Rev. Intell. Prop. L. 589 (2006), Lulin Gao

UIC Review of Intellectual Property Law

With the rapid development of information and Internet technologies, how to protect intellectual property (IP) rights in the Internet era became a new frontier for IP practitioners and scholars internationally. This article highlights some important IP protection issues related to copyright, patent, trademark, and domain names, as well as the impact of technological advances on IP protection in the Internet era. The author believes that in order to solve these new emerging issues, the most important principle is keeping the balance between different sides with stakes in the IP right. Finally, international cooperation must be enhanced with more technical assistance …

The Intellectual Property Marketplace: Past, Present And Future, 5 J. Marshall Rev. Intell. Prop. L. 605 (2006), James E. Malackowski

UIC Review of Intellectual Property Law

This article provides an overview of the evolution of the intellectual property marketplace, describes existing mechanisms by which intellectual property value is transacted, and hypothesizes future marketplace mechanisms. A discussion of intellectual property value is also presented. Specifically, analyses of value indications as evidenced by the public and private equity markets are described. Finally, two future critical issues for intellectual property practitioners relating to intellectual property value are described: class action shareholder litigation and royalty stacking.

The Ip Asset Class: Protecting And Unlocking Inherent Value, 5 J. Marshall Rev. Intell. Prop. L. 402 (2006), Stephen Bennett

UIC Review of Intellectual Property Law

Intangible inputs are as important, or more important, to wealth creation than tangible assets and corporate leaders are beginning to recognize the value of their intangible assets. Investors are also focusing on companies whose primary property value is largely intangible intellectual property. IP investment strategies involve either attempts to raise and employ immediate capital through securitization or to protect the value of IP through insurance. The nexus between finance and IP presents a revenue opportunity for law firms. There is already a contingent of the legal community that services clients concerning IP issues but only a much smaller niche segment …

Domestic Surveillance And The Constitution, 24 J. Marshall J. Computer & Info. L. 177 (2006), Lawrence Friedman, René M. Landers

UIC John Marshall Journal of Information Technology & Privacy Law

This article argues that President Bush’s domestic electronic surveillance program is unconstitutional. The program allows the President to order the NSA to conduct surveillance of electronic communications, including communications involving United States citizens, without court order. The authors conclude that the President lacked the statutory or constitutional power to authorize such a program and that the program runs afoul to the letter and the spirit of the constitutional protection against unreasonable searches and seizures embraced by the Fourth Amendment of the United States Constitution. Congress and the President share overlapping constitutional authority in matters of foreign affairs and national security. …

The Protection Of Maps And Spatial Databases In Europe And The United States By Copyright And The Sui Generis Right, 24 J. Marshall J. Computer & Info. L. 195 (2006), Katleen Janssen, Jos Dumortier

UIC John Marshall Journal of Information Technology & Privacy Law

Spatial data and applications play an ever-increasing part in our economy and in our society in general, but the protection of spatial databases by intellectual property rights seems to be a challenge because the Internet and information technology have caused a considerable increase in the copying of data, maps, route descriptions, hiking trails, etc. The illegal copying of spatial data, however, has caused the data producers to turn to several means of protection, such as intellectual property legislation, unfair competition, confidentiality and privacy. This paper begins by determining what is meant by spatial data. Thereafter, the paper reflects on the …

Voip Goes The Bad Guy: Understanding The Legal Impact Of The Use Of Voice Over Ip Communications In Cases Of Nsa Warrantless Eavesdropping, 24 J. Marshall J. Computer & Info. L. 227 (2006), Eric Koester

UIC John Marshall Journal of Information Technology & Privacy Law

For purposes of national security, the Bush administration delegated authority to the National Security Administration (“NSA”) to conduct warrantless surveillance of Americans; and such surveillance defies tradition. At the same time, emerging communications technology, like Voice over Internet Protocol (“VoIP”), complicates the already controversial issue by generating uncertainty about how courts will analyze warrantless surveillance of such forums. The problem lies in outdated communications and surveillance regulations, which effectively address older communications forums, like the telephone, but encounter stifling ambiguity vis-à-vis VoIP and other new forums. VoIP is a relatively new technology, but it encompasses the large and ever-growing use …

The Federal Election Commission & Political Blogging: A Perfect Balance Or Just Not Enough?, 24 J. Marshall J. Computer & Info. L. 611 (2006), Niki Vlachos

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Cleaning Metadata On The World Wide Web: Suggestions For A Regulatory Approach, 24 J. Marshall J. Computer & Info. L. 531 (2006), Marcel Gordon

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.