Law Commons^™

What A Long, Strange “Trips” It’S Been: Compulsory Licensing From The Adoption Of Trips To The Agreement On Implementation Of The Doha Declaration, 3 J. Marshall Rev. Intell. Prop. L. 331 (2004), Mark C. Lang

UIC Review of Intellectual Property Law

Startling numbers of people die every day because they do not have access to essential medicines and treatment for diseases such as HIV/AIDS, particularly in Africa and Asia. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was established by the World Trade Organization (WTO) to set a minimum level of protection of intellectual property rights across international borders, as well as promote and protect the welfare of humanity. This Comment reviews the history of the TRIPS Agreement, including the most recent adoption of the WTO relating to the issuance of compulsory licenses. Specifically, this Comment suggests that the …

Developments In Patent Law 2004, 4 J. Marshall Rev. Intell. Prop. L. 1 (2004), Harold C. Wegner

UIC Review of Intellectual Property Law

There are a great number of patent law doctrines that are currently under reconsideration by the Federal Circuit. These doctrines include patent claim construction under the 2006 Phillips case, the problem of foreign activity being used as patent-defeating prior art as shown in the recent Elsner case, the growing challenge of extraterritorial acts as patent infringement as presented in the 2004 expected cases of Blackberry and Eolas, the “Rule 105” implications for patent office practice in Sta Fruits, the change in willful infringement law set forth in the recent KnorrBremse case, the continuing problem of co-inventorship recurring in Xechem, the …

“Shamnesty” Vs. Amnesty: Can The Riaa Grant Immunity To File-Sharers From Copyright Infringement Lawsuits?, 3 J. Marshall Rev. Intell. Prop. L. 279 (2004), Natosha Cuyler-Sherman

UIC Review of Intellectual Property Law

The Recording Industry Association of America (RIAA) is the industry trade association for sound and music recordings and represents various music companies, songwriters, and music artists. One of the main functions of the RIAA is to enforce its members’ copyrights. The RIAA is currently representing members in copyright infringement lawsuits. As an alternative to being sued, the RIAA announced that it would grant amnesty to file sharers who voluntarily identified themselves and promised to stop illegally sharing music. In reality, non-RIAA members and even RIAA members themselves can still sue file sharers because the organization itself does not have the …

The Accidental And Inherent Anticipation Doctrines: Where Do We Stand And Where Are We Going?, 4 J. Marshall Rev. Intell. Prop. L. 63 (2004), Anne Brown, Mark Polyakov

UIC Review of Intellectual Property Law

It is often unclear when a prior occurrence or disclosure of a claimed invention falls under the patent law doctrines of inherent or accidental anticipation. Courts have applied various tests in determining whether anticipation is inherent or accidental, and the cases are difficult to reconcile. Tests seemingly dispositive to establish an accident in one case may also appear dispositive to establish inherency. As a result of our analysis, we have developed a two-step test that can be used to reconcile the two doctrines and determine whether a product or process anticipates. The first prong is concerned with whether the prior …

Dividing The (Statutory) Baby Under Anton/Bauer: Using The Doctrine Of Implied License To Circumvent § 271(C) Protection For Components Of A Patented Combination, 3 J. Marshall Rev. Intell. Prop. L. 355 (2004), Daniel M. Lechleiter

UIC Review of Intellectual Property Law

In proscribing contributory infringement of patents, § 271(c) of Title 35 of the United States Code unambiguously provides statutory protection for certain unpatented components of patented combinations and certain unpatented materials or apparatuses used in patented processes. The doctrine of implied license provides a viable defense against claims of contributory infringement. Such a finding may result from a variety of related doctrines, such as the exhaustion doctrine or the doctrine of equitable estoppel. However, unlike the Supreme Court’s application of the former doctrine in Dawson Chemical Co. v. Rohm & Haas Co., involving an unpatentedchemical used in a patented process, …

Trademark Surveys: Development Of Computer-Based Survey Methods, 4 J. Marshall Rev. Intell. Prop. L. 91 (2004), Robert H. Thornburg

UIC Review of Intellectual Property Law

Courts have continually utilized surveys to show evidence of secondary meaning, genericness, dilution, and functionality in trademark litigation. In conducting a trademark survey, an expert must consider various factors that may affect the admissibility of the survey in court, including assuring the correct universe of respondents are questioned, implementing controls, and verifying the results. In light of these considerations, as well as the ever-changing environment of consumer shopping, the manner and mode of survey that a court accepts as appropriate must adapt to these conditions. The use and acceptance of online and computer-based surveys is not currently well received by …

When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas

UIC Review of Intellectual Property Law

Reexamination was created to reconfirm the presumed validity of a patent without requiring the patentee to endure the expense of litigation. The Patent Act allows anyone to request reexamination of a patent based on newly discovered prior art. Upon finding that the request raises a substantial new question of patentability, the Director of the United States Patent and Trademark Office may order reexamination. Even if a request is not made, the Director may sua sponte order a reexamination. Such reexaminations are only initiated when questions of public policy arise and there is no interest by any other pson. However, in …

Football's Intellectual Side: The Nfl Versus Super Bowl Parties And The Story Of The Fifty-Five Inch Television, 4 J. Marshall Rev. Intell. Prop. L. 125 (2004), Michael M. Fenwick

UIC Review of Intellectual Property Law

The increasing popularity of the National Football League’s Super Bowl Championship has spawned an increasing number of private parties, some that employ projection-screen televisions measuring up to twenty feet diagonally. Only days before the 2004 Super Bowl, the NFL sent cease-and-desist letters to a number of business proprietors claiming display of the broadcast on televisions larger than fifty-five inches diagonally violated the NFL’s rights under 17 U.S.C. § 110(5). This Comment will show that because 17 U.S.C. § 110(5) was written to protect authors within the music industry, its application to broadcast television fails because of television’s fundamentally different business …

Does David Need A New Sling? Small Entities Face A Costly Barrier To Patent Protection, 4 J. Marshall Rev. Intell. Prop. L. 184 (2004), Jeff A. Ronspies

UIC Review of Intellectual Property Law

The cost of enforcing patent rights is discouraging the small-entity inventor from seeking out patent protection. The United States Patent and Trademark Office favors the “small entity” by reducing fees, but the world of infringement litigation offers no such discount. For the small entity, the costs related to asserting or defending its patent rights against a well-funded adversary often exceed the benefits of patent ownership. These inventors, in weighing the high costs of patent protection against the potential profits, may simply choose to not patent their innovations. Such a decision would deprive the public of the invention’s disclosure and ultimately …

Geo-Location Technologies And Other Means Of Placing Borders On The 'Borderless' Internet, 23 J. Marshall J. Computer & Info. L. 101 (2004), Dan Jerker B. Svantenson

UIC John Marshall Journal of Information Technology & Privacy Law

Until recently it was considered impossible or at least pointless to attempt to identify the actual geographic location of Internet users in the online environment. However, this is changing and, although extremely accurate geographical identifiers do not exist, more geo-location technologies are used to track the location of the Internet users for a variety of reasons such as fraud detection, authentication, content targeting, security and network efficiency, conditioning access and legal compliance. The article distinguishes between hard protection provided by geo-location technologies and soft protection provided by non-technical means. It then proceeds in presenting and examining the geo-location technologies, sophisticated …

Open And Closed: Captioning Technology As A Means To Equality, 23 J. Marshall J. Computer & Info. L. 159 (2004), Faye Kuo

UIC John Marshall Journal of Information Technology & Privacy Law

It is well known that going to the movies is an extremely popular pastime for the Americans. However for millions of Americans who are deaf or hard of hearing this is not something that they can enjoy in the same terms as the rest of the other movie goers since most movie theater operators consider that providing “equal access” to deaf or hard of hearing individuals consists only of allowing them to enter the theater, purchase and ticket and sit down not install captioning technology so that deaf or hard of hearing individuals could actually understand the movie shown. The …

To: Client@Workplace.Com: Privilege At Risk?, 23 J. Marshall J. Computer & Info. L. 75 (2004), Dion Messer

UIC John Marshall Journal of Information Technology & Privacy Law

As more attorneys now days use the e-mail as their primary source of communication with their clients, new issues arise regarding the potential threat to attorney-client communication privilege resulting from the standard and systematic employer monitoring of their employees e-mails. Indeed employers monitor their employees’ computer use and in some cases terminate employees as result of this monitoring, for various reasons such as to increase of employee productivity and efficiency, protect their public image, prevent workplace harassment, protect their Intellectual Property assets and their network capacity. Given the systematic workplace monitoring but also the fact that contrary to the American …

The Truth About The Truth In Domain Names Act: Why This Recently Enacted Law Is Unconstitutional, 23 J. Marshall J. Computer & Info. L. 141 (2004), Michael Honig

UIC John Marshall Journal of Information Technology & Privacy Law

In April 2003 the Prosecutorial Remedies and other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) was enacted with the goal to protect children from abduction and abuse and achieve a more aggressive pursuit of the individuals committing crimes against the children. Although the AMBER Alert system is the most known portion of the legislation other provisions including the Truth in Domain Names Act (TDNA) making the use of a misleading Internet domain name to deceive a person to view pornography a criminal offense were also included. This comment first discusses the case of John …

Lessons For The Hague: Internet Jurisdiction In Contract And Tort Cases In The European Community And The United States, 23 J. Marshall J. Computer & Info. L. 1 (2004), Moritz Keller

UIC John Marshall Journal of Information Technology & Privacy Law

With the increasing use of the Internet, all on-line users, web site owners, e-commerce companies and consumers alike, feel the need to be able to rely on clear standards for a potential contract or tort lawsuit following the Internet presence that could lead to multinational litigation. This goal could be achieved if the negotiations of the Hague Convention on international jurisdiction and enforcement of foreign judgments in civil and commercial matters succeed in harmonizing the rules of the different legal systems around the globe, or at least create a minimum standard for legal cases which would benefit greatly e-commerce and …

Privatizing Information And Information Technology – Whose Life Is It Anyway?, 22 J. Marshall J. Computer & Info. L. 375 (2004), Ellen Dannin

UIC John Marshall Journal of Information Technology & Privacy Law

As the United States government collects personal and private information about each of us, the government must also consider ways of preventing that information from falling into the wrong hands. In the wrong hands, that information can be turned against the individual – from blackmailing to more nefarious acts, such as terrorism. However, the government trend of outsourcing information gathering tasks has dramatically increased the chances of the wrong people receiving sensitive information. The government has been outsourcing information gathering tasks because of their failure to develop sufficient in-house expertise to handle information gathering. A second reason is that some …

Defining Cyberterrorism, 22 J. Marshall J. Computer & Info. L. 397 (2004), Mohammad Iqbal

UIC John Marshall Journal of Information Technology & Privacy Law

This article explores the definition of the term “cyberterrorism” in light of available literature and recent legislation in an attempt to distinguish cyberterrorism from other cyber activities and crimes. Cyberterrorism is the convergence of terrorism and cyberspace. The author discusses the differences between true cyberterrorism – that is, actual harm caused by cyber attacks – versus less malignant attacks that do more to annoy than harm. The author points out that the main difference between cyberterrorism and other cyber attacks, such as hacking and cracking, is that cyberterrorists are politically motivated, while other cyber attackers have non-politic motives.

The Fourth Amendment And The Wiretap Act Fail To Protect Against Random Isp Monitoring Of E-Mails For The Purpose Of Assisting Law Enforcement, 22 J. Marshall J. Computer & Info. L. 493 (2004), Jim W. Ko

UIC John Marshall Journal of Information Technology & Privacy Law

This article takes the position that the Wiretap Act and the Electronic Communications Privacy Act (ECPA) does little to provide protection against internet service providers (ISPs) that randomly monitor e-mails for the purpose of turning over evidence of criminal activities to law enforcement officials. The article provides a background to the special privacy issues that arise in the context of computer technology and ISPs. An analysis of the Wiretap Act, as amended by the ECPA, reveals that an implicit statutory prohibition against random surveillance by ISPs for the purpose of assisting law enforcement does in fact exist. Further, remedies for …

The Global Rise Of A Duty To Disclose Information Security Breaches, 22 J. Marshall J. Computer & Info. L. 457 (2004), Ethan Preston, Paul Turner

UIC John Marshall Journal of Information Technology & Privacy Law

Section 1798.82 requires computer database operators to disclose security breaches involving personal data information to both the subjects of the data and the owners of the personal data. However, this commentary views Section 1798.82 with apprehension, but takes the position that much broader duties to disclose such breaches are already in place. This article begins with a discussion about legislation that expressly require disclosure of computer security breaches, such as Section 1798.82 and Article 4 of the European Union Telecommunications and Electronic Communications Privacy Directives. Then it follows with a discussion about legislation and common law that implicitly requires disclosure …

Www.Yourname.Com: How Useful Is The Uniform Domain Name Dispute Resolution Policy ("Udrp") In Protecting Personal Names From Cybersquatters?, 22 J. Marshall J. Computer & Info. L. 535 (2004), Georgette H. Tarnow

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Democracy In Decline: Can Internet Voting Save The Electoral Process?, 22 J. Marshall J. Computer & Info. L. 409 (2004), Bryan Mercurio

UIC John Marshall Journal of Information Technology & Privacy Law

Voter confidence that votes are accurately cast, counted, and kept are at an all time low. The traditional methods of voting has proven itself time and time again to be untrustworthy and unreliable, as evidenced recently in the 2000 presidential elections. The time is now ripe to thoroughly investigate alternative methods of casting ballots as a way to restore voter confidence in the electoral system. Using the Internet to assist the electoral system has emerged as a potential option in order to remedy many defects within the electoral process. However, Internet voting is untested and less transparent than traditional voting …

Dow Jones And The Defamatory Defendant Down Under: A Comparison Of Australian And American Approaches To Libelous Language In Cyberspace, 22 J. Marshall J. Computer & Info. L. 553 (2004), Richard L. Creech

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Destruction Of Media Diversity, Or: How The Fcc Learned To Stop Regulating And Love Corporate Dominated Media, 22 J. Marshall J. Computer & Info. L. 569 (2004), Christa Corrine Mclintock

UIC John Marshall Journal of Information Technology & Privacy Law

Christa Corrine McLintock’s “The Destruction of Media Diversity, or: How the FCC Learned to Stop Regulating and Love Corporate Dominated Media” investigates the current corporate consolidation climate and the efficacy of alternative media outlets. McLintock examines the history of the Federal Communication Commission (“FCC”) and its current trend toward deregulation. McLintock argues that the Internet has failed to level the playing field between alternative media outlets and mainstream media conglomerates. She concludes that increased regulation is not only the most viable solution to the alternative media’s predicament, but also the means through which to satisfy the FCC’s stated goals, facilitate …

The States And The Electronic Communications Privacy Act: The Need For Legal Processes That Keep Up With The Times, 22 J. Marshall J. Computer & Info. L. 695 (2004), Monique Mattei Ferraro

UIC John Marshall Journal of Information Technology & Privacy Law

In criminal investigation when hours may mean the difference between successful resolution of a case or not, law enforcement must have an effective method of obtaining necessary information. The author offers an overview of the Electronic Communications Privacy Act (ECPA) and proceeds in a presentation of cybercrime investigations. The article further examines the differences and the occasional conflict existing between the federal and state law, traced into the variety and multitude of state and local laws and procedures regulating the obtaining of information but also into lack of state and local resources. Indeed state and local laws not only differ …

A Normative Critique Of Private Domain Name Dispute Resolution, 22 J. Marshall J. Computer & Info. L. 625 (2004), J.R. Hildenbrand

UIC John Marshall Journal of Information Technology & Privacy Law

In recent years, much has been made of the rapid expansion and tremendous commercial potential of the Internet. As such, domain names that contain or imply an entities trademarked name have become extremely valuable to these entities. The difficulty, however, is balancing the rights of the trademark owners with Internet users within the burgeoning commercial environment. This comment examines the balance between the Uniform Dispute Resolution Policy (UDRP) and traditional trademark protection. It discusses several persuasive documents including the International Trademark Association’s 1997 White Paper and the United States Department of Commerce’s Green and White papers. The comment further develops …

Retention Of Communications Data: A Bumpy Road Ahead, 22 J. Marshall J. Computer & Info. L. 731 (2004), Abu Bakar Munir, Siti Hajar Mohd Yasin

UIC John Marshall Journal of Information Technology & Privacy Law

The EU Electronic Privacy Directive of 2002 requires members to ensure the confidentiality of communications but allows member states to restrict the scope of such protection for national security and defense reasons as well as to prevent, investigate detect and prosecute crimes. Despite the criticism a provision on retention of communications date was inserted, reversing thus the position taken under the previous EU Telecommunications Privacy Directive of 1997. This article presents the evolution of the EU Electronic Privacy Directive of 2002 starting from the initial proposal of 2000 which did not include a retention of data provision, to the final …

"You Have The Right To Remain Silent . . . You Have No Right To Your Dna" Louisiana's Dna Detection Of Sexual And Violent Offender's Act: An Impermissible Infringement On Fourth Amendment Search And Seizure, 22 J. Marshall J. Computer & Info. L. 759 (2004), Reneé A. Germaine

UIC John Marshall Journal of Information Technology & Privacy Law

In 2003 Louisiana legislature enacted the DNA Detection Of Sexual And Violent Offenders Act requiring that any person arrested for certain offenses must submit to a DNA sample extraction to be stored with the State’s DNA databank, for the purpose to be utilized as a tool for identification in the criminal investigation and in discovering missing persons. The comment, after a brief presentation of the history of the Act and the DNA technology overview, argues that the Act infringes the Fourth Amendment protections against unreasonable search and seizure. It presents the already established standards of probable cause as well as …

Is The Acpa A Safe Haven For Trademark Infringers? - Rethinking The Unilateral Application Of The Lanham Act, 22 J. Marshall J. Computer & Info. L. 655 (2004), Jinku Hwang

UIC John Marshall Journal of Information Technology & Privacy Law

The Anticybersquatting Consumer Protection Act (ACPA) was enacted in 1999 as a response to international disputes over Internet domain names because according to the Congress’ point of view, courts could not successfully protected American businesses in cases where nothing more that the registration of a trademark or its variation in a domain name had occurred. This article analyzes recent court decisions regarding domain name disputes after the enactment of ACPA focusing on reverse domain name hijacking in international, trademark related and gTLD disputes. The author argues that the in rem jurisdiction provided by the ACPA and the consequent extraterritorial effect …

The Concept Of "Harm" In Computer-Generated Images Of Child Pornography, 22 J. Marshall J. Computer & Info. L. 717 (2004), Jisuk Woo

UIC John Marshall Journal of Information Technology & Privacy Law

There has been a lot of controversy about the harm caused by computer-generated child pornography. This article examines the new ways in which technological development has created new concerns about child pornography especially in the context of challenging the concept of “harm” in the existing child pornography law. The author presents and discusses the existing child pornography laws and jurisprudence as well as the relevant arguments raised against it most of which are based on the “harm” caused by child pornography. This concept of “harm” and the different ways it is conceived and understood is analyzed and empirical evidence supporting …

Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield

Scholarly Articles

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.

A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …

Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner

All Faculty Scholarship

This Article delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's earlier article, Is Patent Law Technology-Specific?, the piece notes that the basic question posed by Burk and Lemley's article is a relatively easy question given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which this Article refers to as micro-exceptionalism) is both observable and easily justifiable for a legal regime directed to technology policy. In contrast, Burk and Lemley's identification of, …