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Full-Text Articles in Law
Comments On Paul R. Michel's Contributions To Justice, 10 J. Marshall Rev. Intell. Prop. L. 279 (2011), James F. Holderman
Comments On Paul R. Michel's Contributions To Justice, 10 J. Marshall Rev. Intell. Prop. L. 279 (2011), James F. Holderman
UIC Review of Intellectual Property Law
No abstract provided.
Chief Judge Michel's Current And Future Contributions To Improving U.S. Intellectual Property Rights, 10 J. Marshall Rev. Intell. Prop. L. 299 (2011), Herbert C. Wamsley
Chief Judge Michel's Current And Future Contributions To Improving U.S. Intellectual Property Rights, 10 J. Marshall Rev. Intell. Prop. L. 299 (2011), Herbert C. Wamsley
UIC Review of Intellectual Property Law
No abstract provided.
Inconsistency Should Not Be Materiality: The Flaws In 37 C.F.R. § 1.56(B)(2), 10 J. Marshall Rev. Intell. Prop. L. 491 (2011), Lawrence Pope
Inconsistency Should Not Be Materiality: The Flaws In 37 C.F.R. § 1.56(B)(2), 10 J. Marshall Rev. Intell. Prop. L. 491 (2011), Lawrence Pope
UIC Review of Intellectual Property Law
The doctrine of inequitable conduct is in need of clarification. The Court of Appeals for the Federal Circuit has recently granted en banc review in Therasense, Inc. v. Becton, Dickinson, & Co. to determine the appropriate standards for each prong of inequitable conduct doctrine: materiality and intent. While the parties and the amici have almost unanimously proposed that the standard of materiality should be less inclusive than “what a reasonable examiner would want to know in deciding upon patentability,” there is much debate regarding how the standard for materiality should be articulated. One proposal is that the courts should look …
You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee
You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee
UIC Review of Intellectual Property Law
Many recording artists and songwriters never reap the rewards of their work. America’s first professional songwriter died in poverty at the age of thirty-seven. At the Congressional level the situation has described recording artists as “one group of creators who get ripped off more than anybody else in any other industry”. As we approach 2013, there will be a new line of cases that deal with authors of sound recordings attempting to terminate their copyright assignment to the record companies. While the most efficient and frugal solution would be legislative action, the most probable outcome is expensive, fact-intensive litigation. Congress …
Honey Get My Gun, The Transgenic Seeds Are In The Field Again, 11 J. Marshall Rev. Intell. Prop. L. 439 (2011), Christian B. Miller
Honey Get My Gun, The Transgenic Seeds Are In The Field Again, 11 J. Marshall Rev. Intell. Prop. L. 439 (2011), Christian B. Miller
UIC Review of Intellectual Property Law
The proliferation of genetically modified (“GM”) crops in the United States has dramatically increased in the past two decades. This increase has led to fears of dwindling biodiversity in this country’s staple crops. Consumer health and environmental advocates have attempted to slow the deregulation of such crops through administrative challenges. Such tactics were largely undermined in the 2010 Supreme Court case of Monsanto Co. v. Geertson. Anti-GM groups have subsequently attempted to invalidate patents for GM crops on moral grounds. This comment explores the futility of administrative and moral challenges to GM crop proliferation, and looks ahead to the proper …
Patent Law In The Antitrust Scope: Between Social Advancement And Competition Impingement, 11 J. Marshall Rev. Intell. Prop. L. 367 (2011), Yaniv Gal
UIC Review of Intellectual Property Law
In the past couple of decades, many scholars have debated the worthiness of the limited monopoly that patent law provides. The widespread attitude has always been, since the progress of the technological era, that in order to stimulate inventors and possessors of knowledge to embody their knowledge by innovative products, and produce ameliorations into society, they should be given strong proprietary rights over their innovative information and ideas. With the rise of the economic analysis of law, dissident opinions have been starting to emerge, evoking the social damage absorbed due to the current patent system monopoly character in form of …
Foreword, 10 J. Marshall Rev. Intell. Prop. L. 278 (2011), Meredith Martin Addy
Foreword, 10 J. Marshall Rev. Intell. Prop. L. 278 (2011), Meredith Martin Addy
UIC Review of Intellectual Property Law
No abstract provided.
Paul Michel: A Patriot And A Mentor, 10 J. Marshall Rev. Intell. Prop. L. 282 (2011), Matthew J. Dowd
Paul Michel: A Patriot And A Mentor, 10 J. Marshall Rev. Intell. Prop. L. 282 (2011), Matthew J. Dowd
UIC Review of Intellectual Property Law
No abstract provided.
The Paul Michel You Never Knew, 10 J. Marshall Rev. Intell. Prop. L. 286 (2011), Lindsay Androski Kelly
The Paul Michel You Never Knew, 10 J. Marshall Rev. Intell. Prop. L. 286 (2011), Lindsay Androski Kelly
UIC Review of Intellectual Property Law
No abstract provided.
Clarifying The Doctrine Of Inequitable Conduct, 10 J. Marshall Rev. Intell. Prop. L. 290 (2011), Elizabeth I. Winston
Clarifying The Doctrine Of Inequitable Conduct, 10 J. Marshall Rev. Intell. Prop. L. 290 (2011), Elizabeth I. Winston
UIC Review of Intellectual Property Law
No abstract provided.
In His Own Words: The Career Of Chief Judge Paul Michel, 10 J. Marshall Rev. Intell. Prop. L. 301 (2011), Gene Quinn
In His Own Words: The Career Of Chief Judge Paul Michel, 10 J. Marshall Rev. Intell. Prop. L. 301 (2011), Gene Quinn
UIC Review of Intellectual Property Law
No abstract provided.
Ip Legal Ethics In The Everyday Practice Of Law: An Empirical Perspective On Patent Litigators, 10 J. Marshall Rev. Intell. Prop. L. 309 (2011), William T. Gallagher
Ip Legal Ethics In The Everyday Practice Of Law: An Empirical Perspective On Patent Litigators, 10 J. Marshall Rev. Intell. Prop. L. 309 (2011), William T. Gallagher
UIC Review of Intellectual Property Law
This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and …
Ethical Issues In U.S. Trademark Prosecution And Ttab Practice, 10 J. Marshall Rev. Intell. Prop. L. 365 (2011), Linda K. Mcleod, Stephanie H. Bald
Ethical Issues In U.S. Trademark Prosecution And Ttab Practice, 10 J. Marshall Rev. Intell. Prop. L. 365 (2011), Linda K. Mcleod, Stephanie H. Bald
UIC Review of Intellectual Property Law
The conduct of practitioners and agents before the U.S. Patent and Trademark Office (“USPTO” or “Office”) is subject to regulation by the Office under 35 U.S.C. § 2(b)(2)(D). This provision grants the Under Secretary of Commerce for Intellectual Property and the Director of the USPTO the authority to establish regulations to govern the conduct of agents, attorneys, or other representatives before the Office, including establishing disciplinary measures for non-compliance with those regulations. The USPTO regulations governing conduct include the Patent and Trademark Office Code of Professional Responsibility. This article summarizes the key canons and disciplinary rules applicable to trademark practitioners …
International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu
International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu
UIC Review of Intellectual Property Law
This paper discusses the concept of using international arbitration as a method of resolving patent disputes. First, this paper examines the arbitrability of patent validity disputes from a public policy viewpoint. The question is whether, or to what extent, the subject matter of patent validity disputes may be settled by international commercial arbitration. Second, this paper provides suggestions on strategies for organizational decision-makers to consider whether it is proper to choose arbitration as a more favorable tool when confronted with a patent dispute. Finally, this paper discusses how to choose the seat of arbitral institution and the applicable law.
Acceptable Fraud? How Falsities And Misstatements Can Escape The Scope Of The New Fraud Standard, 10 J. Marshall Rev. Intell. Prop. L. 410 (2011), Jacobi M. Fields
Acceptable Fraud? How Falsities And Misstatements Can Escape The Scope Of The New Fraud Standard, 10 J. Marshall Rev. Intell. Prop. L. 410 (2011), Jacobi M. Fields
UIC Review of Intellectual Property Law
Accuracy is crucial to the trademark registration process. Registrants are required to submit truthful applications to the United States Patent and Trademark Office (“PTO”) or face fraud liability. Pursuant to the Lanham Act, fraud liability is initiated by the submission of “false or fraudulent” statements in a trademark application. This language presents a critical problem for registrants because the terms false and fraudulent are not synonymous, and it is unclear what actually triggers fraud liability. As a result, the requirements for fraud liability and the corresponding standards for fraud have been in fluctuation over the past ten years. In 2009, …
Patent Office As Biosecurity Gatekeeper: Fostering Responsible Science And Building Public Trust In Diy Science, 10 J. Marshall Rev. Intell. Prop. L. 423 (2011), Brian J. Gorman
UIC Review of Intellectual Property Law
When the fields of intellectual property law and biotechnology intersect, most analysis is driven byeconomic and ethical issues. This article examines these factors, but in relation to the emerging security threat posed by biohackers, or do-it-yourself (“DIY”) scientists, who operate free from oversight and industry norms at the fringes of the biotechnology community. Public health risks are poised to grow as these citizen-scientists race for lucrative discoveries in the new frontier of syntheticbiology. This article proposes that the existing paradigm adjust accordingly to leverage regulatory compliance from the most ambitious biohackers looking to benefit from patent protection. The U.S. government …
Do You Mind My Smoking? Plain Packaging Of Cigarettes Under The Trips Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011), Alberto Alemanno, Enrico Bonadio
Do You Mind My Smoking? Plain Packaging Of Cigarettes Under The Trips Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011), Alberto Alemanno, Enrico Bonadio
UIC Review of Intellectual Property Law
Plain packaging, a new tobacco control tool that a growing number of countries are considering, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the use of the brand name, displayed in a standard font, size, colour and location on the package. In opposing this new strategy, the tobacco industry is particularly keen on emphasizing the uselessness of plain packaging in reducing smoking rates and its incompatibility with trade mark provisions of international treaties. In particular, the tobacco industry and …
The Application Of Data Access Policies Designed For Genome-Wide Association Studies To Smaller Scale Databases, 10 J. Marshall Rev. Intell. Prop. L. 476 (2011), Donna M. Gitter
UIC Review of Intellectual Property Law
Scientific progress thrives with open discussion of new ideas and supporting data. To this end, researchers traditionally publish their results in scientific papers—papers that contain the new ideas and the underlying data supporting those ideas. With the advent of large-scale and high-throughput data analysis, however, the creation of scientific databases have replaced the traditional model. For such publically-funded, data-intensive projects, funding agencies typically require that all relevant data be made available on a publicly accessible website at the time of the paper’s publication. Against the backdrop of the public accessibility model used in the 1000 Genomes Project, the author recommends …
Interpreting Myriad: Acquiring Patent Law's Meaning Through Contemporary Jurisprudence And Humanistic Viewpoint Of Common Heritage Of Dna, 10 J. Marshall Rev. Intell. Prop. L. 508 (2011), Saby Ghoshray
UIC Review of Intellectual Property Law
Until Judge Sweet’s decision in Association for Molecular Pathology v. U.S. Patent & Trademark Office (Myriad), gene patentability in the United States has evaded prohibition for more than three decades since Diamond v. Chakrabarty. The Myriad decision has captured the imagination of the legal community—but not in isolation. This article examines Myriad through the lens of two contemporary European decisions related to gene patenting, Eli Lilly & Co. v Human Genome Sciences, Inc and Monsanto Technology LLC v. Cefetra BV, suggesting that Myriad is a narrative that evolves at the intersection of law’s aspiration, humanity’s common heritage, and corporate realities …
Biotech Patent Infringement In Europe: The "Functionality" Gatekeeper, 10 J. Marshall Rev. Intell. Prop. L. 540 (2011), Vid Mohan-Ram, Richard Peet, Philippe Vlaemminck
Biotech Patent Infringement In Europe: The "Functionality" Gatekeeper, 10 J. Marshall Rev. Intell. Prop. L. 540 (2011), Vid Mohan-Ram, Richard Peet, Philippe Vlaemminck
UIC Review of Intellectual Property Law
The Court of Justice of the European Union recently concluded in Monsanto Technology LLC v. Cefetra BV that a patent with claims drawn to isolated DNA, or transgenic products containing that sequence, cannot be infringed if the DNA is not functional at the time of the alleged infringement.This paper discusses how the Cefetra judgment may unintentionally inflict serious economic harm on the European biotechnology industry because countless biotechnology products may no longer be protected by what are otherwise valid and enforceable patent claims. After Cefetra, an accused infringer may deny infringement by simply asserting that the patented sequence does not …
The Impact Of The Biosimilars Provision Of The Health Care Reform Bill On Innovation Investments, 10 J. Marshall Rev. Intell. Prop. L. 553 (2011), Katherine N. Addison
The Impact Of The Biosimilars Provision Of The Health Care Reform Bill On Innovation Investments, 10 J. Marshall Rev. Intell. Prop. L. 553 (2011), Katherine N. Addison
UIC Review of Intellectual Property Law
The Biologics Price Competition and Innovation Act of 2009 provides an abbreviated FDA approval pathway for biosimilars. The passage of this biosimilar legislation is a positive step toward retaining a robust biotechnology industry in the United States while also protecting innovators. The Act’s increased FDA exclusivity is welcome, but FDA exclusivity alone is insufficient to encourage and protect innovation and investment in biosimilars. Instead, the exclusivity provided by a patent term, together with the ability to adjust this term to compensate an applicant for U.S. Patent and Trademark Office and FDA delays, is necessary to ensure development of highly specialized …
Recognition And Presentation Of A “New Result” To Reach A Safe Harbor, 10 J. Marshall Rev. Intell. Prop. L. 583 (2011), Hal Milton
UIC Review of Intellectual Property Law
A safe harbor where a patent has the best chance of survival in a litigation storm is only established by dividing the preparation of a patent application into two separate categories: the recognition of the new result and the presentation of the new result throughout the patent application. The two famous cases of Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp. and Graham v. John Deere Co. illustrate how the implementation of recognition and presentation might have prevented litigation or saved the patents.
University Initiation Of Patent Infringement Litigation, 10 J. Marshall Rev. Intell. Prop. L. 623 (2011), Jacob H. Rooksby
University Initiation Of Patent Infringement Litigation, 10 J. Marshall Rev. Intell. Prop. L. 623 (2011), Jacob H. Rooksby
UIC Review of Intellectual Property Law
While the literature examining university engagement in patenting and technology transfer is quite developed, commentators largely have overlooked university involvement in patent litigation. This article focuses on one aspect of that involvement—initiation of patent infringement litigation—by providing a quantitative and textual analysis of patent infringement actions initiated by universities from 2009 through 2010. Suing for-profit actors for money may seem antithetical to the mission of not-for-profit universities, but in fact universities filed over fifty such cases in the studied time period. Examination of these cases reveals a remarkable similarity between the litigation behavior of universities and for-profit actors, as well …
Trademark Protection Of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011), Lee B. Burgunder
Trademark Protection Of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011), Lee B. Burgunder
UIC Review of Intellectual Property Law
The Wall Street Journal recently reported that the owner of a Swedish restaurant was suing other businesses for violating its registered trademark, which surprisingly consists of live goats on a grass roof. The PTO and the courts have steadily enlarged the set of trade dress features that might serve as trademarks, and there is no reason, in theory, to treat live animals differently. Nevertheless, the PTO likely made a mistake in this instance when it agreed to register the mark. This article evaluates the requirements for protecting trade dress with trademarks, and explains why a Swedish restaurant should not have …
Notice That Registered Trademark In The Window?, 10 J. Marshall Rev. Intell. Prop. L. 736 (2011), James Juo
Notice That Registered Trademark In The Window?, 10 J. Marshall Rev. Intell. Prop. L. 736 (2011), James Juo
UIC Review of Intellectual Property Law
The letter R enclosed in a circle (i.e., the “®” symbol) is a well-known form of statutory notice for a trademark registered with the United States Patent and Trademark Office. This helps ensure that the public will identify a mark as a source identifier rather than as a generic term for a product or service. Although not mandatory, failure to display the registration symbol or another form of statutory notice with a registered trademark may limit the monetary remedies recoverable in a lawsuit for infringement of that registered mark under the Lanham Act. Absent statutory notice, damages for infringements and …
The Utilitarian Fruits Approach To Justifying Patentable Subject Matter, 10 J. Marshall Rev. Intell. Prop. L. 753 (2011), Emir Aly Crowne
The Utilitarian Fruits Approach To Justifying Patentable Subject Matter, 10 J. Marshall Rev. Intell. Prop. L. 753 (2011), Emir Aly Crowne
UIC Review of Intellectual Property Law
This article proposes an approach to justifying patentable subject matter that uses Locke as its starting point, and utilitarianism as its end. The patent eligibility of any given subject matter must be a mixture of labour and certain utilitarian incentives. If these elements are present—and if the subject matter in question can be made to fit within the definition of invention (even if slightly uncomfortably)—then courts and tribunals should aim to accommodate it.
Twitter's Trademark Problems: Is The Anticybersquatting Consumer Protection Act Outdated?, 10 J. Marshall Rev. Intell. Prop. L. 764 (2011), Cole C. Hardy
UIC Review of Intellectual Property Law
Under the Lanham Act there is no remedy for individuals when imposters register user names with corresponding post-domain paths containing protected trademarks on social network websites. While Twitter temporarily experimented with its own verification process, it currently does not help users of its site distinguish trademark owners’ pages from the imposters’ pages. Current law discouraging such activity only applies to domain names. This article proposes that with a minor change to the ACPA, the Lanham Act could be updated to help trademark owners protect their rights when infringing activity is experienced with social networking handles and the corresponding post-domain paths.
The Throw Down Over Takedowns: An Analysis Of The Lenz Interpretation Of 17 U.S.C. § 512(F), 10 J. Marshall Rev. Intell. Prop. L. 792 (2011), Ian Rubenstrunk
The Throw Down Over Takedowns: An Analysis Of The Lenz Interpretation Of 17 U.S.C. § 512(F), 10 J. Marshall Rev. Intell. Prop. L. 792 (2011), Ian Rubenstrunk
UIC Review of Intellectual Property Law
Recently, a YouTube user and mother of two, Stephanie Lenz, filed a lawsuit against Universal Music Corporation which had the potential for broad impact on the internet. Everyone from politicians, to teachers, to musical artists could have gained more protection of their rights as internet users. With millions of people having access to the internet and YouTube “vloggers” reaching the million mark in subscribers, the court’s interpretation of 17 U.S.C. § 512(f) could have had a significant impact. The issue in the case was what “any damages” meant in a clause creating liability for a party that incorrectly has material …
Right Of Publicity: Is Behavioral Targeting Violating The Right To Control Your Identity Online?, 10 J. Marshall Rev. Intell. Prop. L. 811 (2011), Andrea Stein Fuelleman
Right Of Publicity: Is Behavioral Targeting Violating The Right To Control Your Identity Online?, 10 J. Marshall Rev. Intell. Prop. L. 811 (2011), Andrea Stein Fuelleman
UIC Review of Intellectual Property Law
Behavioral targeting (“BT”) is an advertising technique that receives a great deal of attention due in part to the balkanized self-regulatory policies that address consumer protection issues. The majority of the self-regulation policies, including the BT principles proposed by the Federal Trade Commission (“FTC”) focus on privacy issues but fail to discuss the impact BT may have on the right to control the commercial use of one’s identity. In discussing the right of publicity, many legal scholars agree that everyone has a right to control the commercial use of his or her identity, regardless of his or her status as …
Fifteen Years Of Fame: The Declining Relevance Of Domain Names In The Enduring Conflict Between Trademark And Free Speech Rights, 11 J. Marshall Rev. Intell. Prop. L. 1 (2011), Jude A. Thomas
UIC Review of Intellectual Property Law
Domain name disputes have been the subject of substantial litigation, legislative action, and scholarly debate over the course of the past fifteen years. Much of the debate is the product of disagreement concerning whether trademark rights naturally extend into the domain name space and to what extent those rights are limited by principles of free speech. Gripe sites are paradigmatic examples of this debate. Society’s investment in defining these rights continues to grow, even as the relevance of domain names may be declining, due to: (1) changes in the way users locate content on the Internet; (2) the growth of …