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Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985–2010, 11 J. Marshall Rev. Intell. Prop. L. 58 (2011), Saurabh Vishnubhakat
Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985–2010, 11 J. Marshall Rev. Intell. Prop. L. 58 (2011), Saurabh Vishnubhakat
UIC Review of Intellectual Property Law
This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication. By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …
Golan V. Holder: Copyright In The Image Of The First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011), David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
Golan V. Holder: Copyright In The Image Of The First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011), David L. Lange, Risa J. Weaver, Shiveh Roxana Reed
UIC Review of Intellectual Property Law
Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign …
Trademarks, Identity, And Justice, 11 J. Marshall Rev. Intell. Prop. L. 133 (2011), Rita Heimes
Trademarks, Identity, And Justice, 11 J. Marshall Rev. Intell. Prop. L. 133 (2011), Rita Heimes
UIC Review of Intellectual Property Law
Intellectual property scholars have written extensively against expanding the scope of intellectual property laws, using social justice and distributive justice principles to support their arguments. A typical argument attacks broad adoption and enforcement of copyright laws that prevent access to information and therefore knowledge, or broad patent protection that reduces access to medicines and other important technologies. In recent years, a few scholars have begun to suggest that certain areas of intellectual property law—primarily copyright—may play a positive role in social justice. These arguments are founded on views of social and distributive justice that consider personal empowerment and freedom to …
The Need For Originality: Music Infringement In India, 11 J. Marshall Rev. Intell. Prop. L. 169 (2011), Harini Ganesh
The Need For Originality: Music Infringement In India, 11 J. Marshall Rev. Intell. Prop. L. 169 (2011), Harini Ganesh
UIC Review of Intellectual Property Law
For decades, the Indian film industry has copied tunes from Western copyrighted works and created unauthorized derivatives. As the music and motion picture industries in the United States started taking notice of this copyright infringement, so too did Indian music directors as domestic infringers profited from copying. Despite the existence of an enacted copyright statute in India, and the nation’s membership with various international intellectual property treaties and conventions, enforcement continues to be poor. This lack of protection allows high-profile music directors in the Indian film industry to get away with copyright infringement. This comment proposes that India must improve …
Protecting The Gates Of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. Marshall Rev. Intell. Prop. L. 192 (2011), Merritt J. Hasbrouck
Protecting The Gates Of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. Marshall Rev. Intell. Prop. L. 192 (2011), Merritt J. Hasbrouck
UIC Review of Intellectual Property Law
The reasonable royalty analysis in patent infringement cases remains confusing to juries because of the numerous and arbitrary methods of calculation. The use of confusing methodologies, such as the Georgia-Pacific analysis, the Entire Market Value Rule, and the former 25 percent rule, increase the risk of overcompensating patentees in patent infringement cases. Without suitable changes to the reasonable royalty analysis, damages award amounts will continue to increasingly undermine the incentive for subsequent inventors to create new products. Although the courts have had some success in establishing new methods, Congress should create a more rigid and clear test for use in …
Rights Versus Commerce: Balancing Online Trademark Policing With The Emerging Marketplace, 11 J. Marshall Rev. Intell. Prop. L. 217 (2011), Jessica L. Hilliard
Rights Versus Commerce: Balancing Online Trademark Policing With The Emerging Marketplace, 11 J. Marshall Rev. Intell. Prop. L. 217 (2011), Jessica L. Hilliard
UIC Review of Intellectual Property Law
In 2008, jeweler Tiffany & Co. (“Tiffany”) commenced an action against eBay after discovering that a significant amount of counterfeit Tiffany jewelry was being sold on the online auction house. Tiffany had previously used eBay’s Verified Rights Owner program to report the infringement and pursued enforcement actions against individual sellers. Nevertheless, Tiffany sued eBay for various causes of action, including contributory trademark infringement. The Second Circuit held that online service providers like eBay are not liable for contributory trademark infringement unless they have specific knowledge of particular instances of infringement. Due to the ruling, Tiffany bears the burden for policing …
Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, 11 J. Marshall Rev. Intell. Prop. L. 240 (2011), Warren B. Chik
UIC Review of Intellectual Property Law
This article examines user-generated content (“UGC”) and the significance of re-inventions in the context of an increasingly user-centric internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from various interest …
The Conditional Sale Doctrine In A Post-Quanta World And Its Implications On Modern Licensing Agreements, 11 J. Marshall Rev. Intell. Prop. L. 295 (2011), William Lafuze, Justin Chen, Lavonne Burke
The Conditional Sale Doctrine In A Post-Quanta World And Its Implications On Modern Licensing Agreements, 11 J. Marshall Rev. Intell. Prop. L. 295 (2011), William Lafuze, Justin Chen, Lavonne Burke
UIC Review of Intellectual Property Law
The exclusive rights of a patent owner to exclude others from making, using, or selling patented inventions are limited by the doctrine of patent exhaustion. This doctrine, also known as the first sale doctrine, states that upon the first authorized sale of a patented article in the United States, the article is removed from the patent monopoly, thus losing its patent protection. As a result of this first sale, any subsequent use or sale of the patented article is not an infringement of its corresponding patent. The Federal Circuit further established the conditional sale doctrine in Mallinckrodt, Inc. v. Medipart, …
Nature Or Nurture: Is There A Case Basis For A Judicially Created ‘Product Of Nature’ Exclusion? Are Genes Somehow Different?, 11 J Marshall Rev. Intell. Prop. L. 318 (2011), W. Lesser
UIC Review of Intellectual Property Law
The Myriad Genetics decision has rekindled the product of nature debate. This article analyzes legal decisions spanning the past century for products ranging from plants to man-made elements, which in sum provide guidance to the patentability of genes. The product of nature argument it is concluded confuses rather than clarifies patentability considerations. Patentability in the evaluated cases as well as for genes can be resolved more precisely under the utility, non-obviousness, disclosure, and enablement patentability requirements without a need for any additional judicially-created stipulation. As regards genes, there is an additional dimension for consideration which in the case law and …
Caveat Bibliotheca: The First Sale Doctrine And The Future Of Libraries After Omega V. Costco, 11 J. Marshall Rev. Intell. Prop. L. 414 (2011), Thomas J. Bacon
Caveat Bibliotheca: The First Sale Doctrine And The Future Of Libraries After Omega V. Costco, 11 J. Marshall Rev. Intell. Prop. L. 414 (2011), Thomas J. Bacon
UIC Review of Intellectual Property Law
Having discovered that several of its watches, which were manufactured in Europe, were imported into the United States and sold without authorization, Omega, S.A. ("Omega") commenced an action against Costco Wholesale Corp. in 2005. These watches are a typical example of what are referred to either as parallel imports or gray market goods. In finding for Omega, the Ninth Circuit held that the first sale doctrine does not apply to goods created or produced outside the United States. Such a rule, however, poses grave problems for libraries, in that circulation materials are not required to have a place of manufacture …