Law Commons^™

Intellectual Property Indemnity Clauses, Thomas Ms Hemnes

Thomas Hemnes

In this article, Mr. Hemnes examines the history of intellectual property warranty and indemnity contractual provisions. He then describes events that have destabilized provisions that had become standardized, particularly in the computer software field, and critiques the positions currently taken by both vendors and customers. He concludes with proposals for a better allocation of risk between technology providers and consumers.

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

Cost Shifting In E-Discovery: A Comparative Analysis Between America And Europe, Umar Bakhsh

Umar Bakhsh

E-discovery is quickly becoming a prominent consideration when dealing with traditional discovery requests. The costs of producing e-discovery, however, have grown exponentially due to the voluminous and fragmented nature of electronically stored information. The current standard used by courts, in UBS v. Zubulake, has mistakenly and non-uniformly been applied by courts in spite of Congress’ attempt to create its own standard via FRCP Rule 26. In comparison, Europe’s “loser of litigation pays all court costs” has not adequately met the particular problem created by e-discovery. My article proposes a more manageable alternative standard to Zubulake, FRCP 26, and the European …

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach., John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Amendments To Titles Of United States Code By America Invents Act Of 2011, Arthur Tan-Chi Yuan

Arthur Tan-Chi Yuan

The Leahy-Smith America Invents Act (Act) that was signed by President Obama on September 16, 2011 amends provisions of titles 28, 35, 42, and 51 of U.S.C. This compilation focuses on the amendments to these laws to show the changes for easy reference. In summary, 74 sections (not counting individual subsections) of the US Patent law have been affected by the Act in total. Four sections have been repealed, 18 sections/subsections have been substantially rewritten in terms of the amount of amended texts, and 17 new sections/subsections have been added to title 35 U.S.C. With respect to title 28 of …

The Myth And Reality Of Dilution, Sandra L. Rierson

Sandra L Rierson

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying power of the targeted trademark. The assumption of both the original federal dilution statute enacted in 1995 as well as its substantial enlargement in 2006 is that the source-identifying capacity of a trademark is akin to a glass of water: spill a drop here, spill a drop there and eventually your glass is empty. This Article advances three claims. First, statutory dilution erroneously assumes that the source-identifying function of a trademark is a rivalrous …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through The Rye, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

ABSTRACT The Second Circuit’s 2010 decision in Salinger v. Colting has been widely noticed for vacating a preliminary injunction J. D. Salinger obtained against distribution in the U.S. of Fredrik Colting’s novel, 60 YEARS LATER – COMING THROUGH THE RYE. In an opinion by Judge Guido Calabresi, the panel adopted the standard for equitable relief from eBay, Inc. v. MercExchange (U.S. 2006), overruled circuit precedent, and held that henceforth district courts must find, not presume, that irreparable harm is in fact likely before enjoining a copyright defendant’s activities. This is the first article to observe that what the Second Circuit …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho S

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

Coding For Life--Should Any Entity Have The Exclusive Right To Use And Sell Isolated Dna, Douglas L. Rogers

Douglas L. Rogers

Myriad Genetics, Inc. ("Myriad") obtained patents in the 1990's on two "isolated" human breast and ovarian cancer susceptibility genes ("BRCA"). Myriad did not list all the isolated sequences it claims to have a right to monopolize, but instead claims a patent on the physical phenomena itself -- all DNA segments that code for the BRCA1 polypeptide, even the sequences Myriad has not identified and even someone else in the future creates or isolates the sequences through a method or methods not contemplated by Myriad.

An impressive array of non-profit medical societies, doctors and patients sued to have the Myriad patents …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

This Article …

Serious Flaw Of Employee Invention Ownership Under The Bayh-Dole Act In Stanford V. Roche: Finding The Missing Piece Of The Puzzle In The German Employee Invention Act, Toshiko Takenaka Prof.

Toshiko Takenaka Prof.

In Stanford v. Roche, the Supreme Court highlighted a serious flaw of employee invention ownership under the Bayh-Dole Act (BDA). This article argues that the current BDA is incomplete without a mechanism for contractors to secure the ownership of all federally funded inventions and proposes a revision to introduce such a mechanism from the German Employee Invention Act (EIA). Because the EIA influenced the drafting of the BDA, the EIA and BDA share key features, which make it easy for the BDA to adopt an ownership transfer mechanism from the EIA. This article also proposes to adopt a mechanism to …

Did Learned Hand Get It Wrong?: The Questionable Patent Forfeiture Rule Of Metallizing Engineering Co. V. Kenyon Bearing & Auto Parts Co., Dmitry Karshtedt

Dmitry Karshtedt

As Congress stands on the verge of passing patent reform legislation that will grant patent priority to those who are first to file rather than first to invent, an old chestnut of a case penned by Judge Learned Hand some 65 years ago has attracted the attention of lawmakers and commentators. The case of Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co. dealt with the thorny problem of granting patents those who have, for some time before patenting, practiced their inventions in secret. The Second Circuit held that one who competitively exploits a secret invention at a time …

Vernor V. Autodesk: Power To The...Producers?!, Elizabeth F. Wilhelm

Elizabeth F. Wilhelm

Vernor v. Autodesk, a recent case from the Ninth Circuit, threatens the very core of the first sale doctrine. Vernor radically alters the test for determining whether a transfer of a physical copy of copyrighted material is a sale or a license for the purposes of the first sale doctrine. The new test makes a transfer much more likely to be a license than a sale, possibly extending copyright protection beyond what is called for in the Copyright Act and extending the use of licensing in more media than just computer software. Many resale industries face the peril of widespread …

Res Or Rules? Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris

Emily Michiko Morris

RES OR RULES? PATENTS AND THE (UNCERTAIN) RULES OF THE GAME

Emily Michiko Morris

ABSTRACT

The stakes at play in modern-day patent infringement suits can be worth hundreds of millions of dollars. Just take a look at the $612.5 million that Research In Motion, Ltd., paid to settle NTP, Inc.’s patent infringement suit against it. How could RIM have made such an expensive mistake? After all, patents are public records, so ideally patent infringers should simply do their homework and avoid such massive liability. In reality there are a multitude of reasons why some technology companies find themselves infringing others’ …

Prohibiting Discriminatory Cross-Licensing, Christopher Paul Schaffer

Christopher Paul Schaffer

Two of the key objectives of standards setting organizations are to produce “unified” technology and to engender fairness among competitors. Although most of these organizations require the participants to agree to reasonable and non-discriminatory license terms, it is surprising that most fail to address cross-licensing. In this paper two discriminatory cross-licensing scenarios are provided, demonstrating the adverse effects this practice can have on competition. Subsequent analysis shows the licensor may be in breach of the licensing contract, liable for violation of antitrust, and potentially with an unenforceable patent due to patent misuse. To improve the equity of these scenarios, a …

The Not So Great Wall Of China: Intellectual Property Enforcement Issues March On In The People’S Republic, Anna K. Liu

Anna Liu

No abstract provided.

The Prospects For Protecting News Content Under The Digital Millennium Copyright Act, Priya Barnes

Priya Barnes

The DMCA was enacted to provide adequate legal safeguards against piracy so that content producers, such as music, software, movie and other media producers, would be incentivized to embrace the digital medium. The antitrafficking provision, in particular, imposes civil and criminal sanctions on technology manufacturers who offer the means to circumvent content producers’ digital access controls.

Since its enactment, the DMCA’s antitrafficking provisions have been invoked against hackers of digital music, movies and software. This article weighs the prospects for applying the antitrafficking provisions against news aggregators who access password protected digital news content for redistribution. It concludes that while …

Dicta On Adrenalin(E): Myriad Problems With Learned Hand's Product-Of-Nature Pronouncements In Parke-Davis V. Mulford, Jon M. Harkness

Jon M. Harkness

Gene patents of the type at issue in the Myriad case that is likely headed to the U.S. Supreme Court in the near future are based on an exception to the general principle that patents should not be allowed on products of nature. This exception holds that isolated or purified products of nature can be patented if they have commercial utility. It is widely recognized that this exception can be traced to language from an opinion issued by Judge Learned Hand in a 1911 case, Parke-Davis v. Mulford, which involved a patent dispute over a therapeutically useful version of the …

The Ftc’S Proposal For Regulating Ip Through Ssos Would Replace Private Coordination With Government Hold-Up, F. Scott Kieff, Richard Epstein, Daniel Spulber

F. Scott Kieff

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …