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2010

Intellectual Property Law

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Articles 1 - 30 of 310

Full-Text Articles in Law

The Wrong Tool For The Job: The Ip Problem With Noncompetition Agreements, Viva R. Moffat Dec 2010

The Wrong Tool For The Job: The Ip Problem With Noncompetition Agreements, Viva R. Moffat

William & Mary Law Review

This Article argues that employee noncompetition agreements ought to be unenforceable. It begins by recognizing that there is momentum for change in the law of noncompetes: a number of states and the American Law Institute (ALI) are in the process of reconsidering noncompete doctrine, and recent empirical studies provide evidence as to the mostly negative effects of the agreements. Existing critiques have focused on the problematic nature of noncompetes within the employment relationship. This Article synthesizes those critiques, adding support from empirical studies, and then examines noncompetes from a new perspective.

Commentators have neither recognized nor evaluated the role noncompetes ...


Exhausted Or Unlicensed: Can Field-Of-Use Restrictions In Biotech License Agreements Still Prevent Off-Label Use Promotion After Quanta Computer?, Kristal M. Wicks Dec 2010

Exhausted Or Unlicensed: Can Field-Of-Use Restrictions In Biotech License Agreements Still Prevent Off-Label Use Promotion After Quanta Computer?, Kristal M. Wicks

The University of New Hampshire Law Review

[Excerpt] “In the biotechnology (biotech) industry, companies must be increasingly aware of their intellectual property and how their licensing strategies can impact their rights. When licensing patented technology, it is common practice for biotech companies to include restricted field-of-use provisions in their license agreements. Such provisions permit a licensee to only use licensed technology in a defined field and restrict use or development in another field. This licensing strategy plays an important role within the biotech industry because it allows companies to more effectively control their intellectual property and to more efficiently research and develop pharmaceutical products.

A problem that ...


Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung Dec 2010

Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung

Chicago-Kent Law Review

Within the past couple of years, social networking websites have become an immensely popular destination for people from all walks of life. Websites like Facebook and Twitter now count tens of millions of worldwide users, including world leaders and a number of celebrities. Eventually, users realized that social networking websites lent themselves to the quick and easy impersonation of celebrities through the creation of fake social networking accounts, often as a form of parody. One subject of such impersonation was professional baseball manager Tony La Russa, who took the then-unprecedented step of suing his impersonators and Twitter over the incident ...


Dependent On The Jury: Anticipation And Obviousness Of Dependent Patent Claims And Irreconcilable Jury Verdicts, Patrick Bickley Dec 2010

Dependent On The Jury: Anticipation And Obviousness Of Dependent Patent Claims And Irreconcilable Jury Verdicts, Patrick Bickley

Chicago-Kent Law Review

A jury verdict finding an independent claim valid but a related dependent claim either anticipated or obvious is irreconcilable. However, the Federal Circuit has used the inconsistencies between regional circuits on the issue of jury verdicts to reach different outcomes in similar cases based solely on the region in which the patent case originated. This note advocates a modification to the Federal Circuit's rule of deference to consider irreconcilable verdicts of independent and dependent claims under its own independent analysis. A consistent approach allowing for appellate review regardless of post-verdict motions is advocated, although a more modest position of ...


Written Description: Protecting The Quid Pro Quo Since 1793, Jacob Adam Schroeder Dec 2010

Written Description: Protecting The Quid Pro Quo Since 1793, Jacob Adam Schroeder

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow Dec 2010

Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos Dec 2010

The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Struggling With Sunshine: Analyzing The Impact Of Technology On Compliance With Open Government Laws Using Florida As A Case Study, Sandra F. Chance, Christine M. Locke Dec 2010

Struggling With Sunshine: Analyzing The Impact Of Technology On Compliance With Open Government Laws Using Florida As A Case Study, Sandra F. Chance, Christine M. Locke

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Deidentification Dilemma: A Legislative And Contractual Proposal, Robert Gellman Dec 2010

The Deidentification Dilemma: A Legislative And Contractual Proposal, Robert Gellman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Standards × Patents ÷ Antitrust = ∞: The Inadequacy Of Antitrust To Address Patent Ambush, Jonathan Hillel Nov 2010

Standards × Patents ÷ Antitrust = ∞: The Inadequacy Of Antitrust To Address Patent Ambush, Jonathan Hillel

Duke Law & Technology Review

"Patent ambush" describes certain rent-seeking behavior by the owner of patent rights to a technology that is essential to an industry standard. Two cases, Qualcomm and Rambus, represent attempts of the Third and D.C. Circuits, respectively, to address patent ambushes using federal antitrust statutes. In both cases, antitrust law proves inadequate to the task. Under Qualcomm, licensees gain too much power to extort undervalued royalty rates from patent holders who have disclosed their rights during standard-setting. Under Rambus, coupled with the dearth of other options to combat patent ambushes, non-disclosing patent holders are given free reign over standardized markets ...


Applying Copyright Abandonment In The Digital Age, Matthew W. Turetzky Nov 2010

Applying Copyright Abandonment In The Digital Age, Matthew W. Turetzky

Duke Law & Technology Review

Copyright law protects orphan and parented works equally--but it shouldn't. Consequently, current law unnecessarily restrains public access to works that authors have not exercised dominion over for decades. This problem has come to the fore in the Google Books settlement, which critics argue will give Google a de facto monopoly over orphan works. But this criticism implicates an obvious question: Why are orphan works protected by copyright law in the first place? If orphan works were in the public domain, then no one would worry about Google's supposed "monopoly" because Google's competitors would be free to copy ...


Limitation Of Sales Warranties As An Alternative To Intellectual Property Rights: An Empirical Analysis Of Iphone Warranties’ Deterrent Impact On Consumers, Marc L. Roark Nov 2010

Limitation Of Sales Warranties As An Alternative To Intellectual Property Rights: An Empirical Analysis Of Iphone Warranties’ Deterrent Impact On Consumers, Marc L. Roark

Duke Law & Technology Review

Apple's success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple's exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), intellectual property law allows consumers to alter their products so as to circumvent relationships that manufacturers may have with others. The patent and copyright law first sale doctrine allows consumers to manipulate a product after it is purchased. As a result, manufacturers are increasingly turning to alternatives to intellectual property to secure control over the device after the sale. One such ...


First Amendment Based Copyright Misuse, David S. Olson Nov 2010

First Amendment Based Copyright Misuse, David S. Olson

William & Mary Law Review

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation ...


The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Nov 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Vanderbilt Law Review

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage.' Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one's image, and other related intangibles. These rights regimes are in turn collectively referred to ...


Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna Nov 2010

Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna

Michigan Law Review

Trademark owners regularly rely on claims that the defendant is "free riding" on their mark by making money using that mark, money the trademark owners say should belong to them. We analyze those free-riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well-known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff's mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to ...


Reinventing Usefulness, Michael Risch Nov 2010

Reinventing Usefulness, Michael Risch

BYU Law Review

No abstract provided.


Reconsidering The Georgia-Pacific Standard For Reasonable Royalty Patent Damages, Christopher B. Seaman Nov 2010

Reconsidering The Georgia-Pacific Standard For Reasonable Royalty Patent Damages, Christopher B. Seaman

BYU Law Review

No abstract provided.


Patently Obvious: A Dual Standard Solution To The Diverging Needs Of The Information Technology And Pharmaceutical Patent Industries, Andrew Moody Oct 2010

Patently Obvious: A Dual Standard Solution To The Diverging Needs Of The Information Technology And Pharmaceutical Patent Industries, Andrew Moody

Golden Gate University Law Review

This Comment proposes the use of a specifically tailored obviousness standard as a new solution to the IT and pharmaceutical patent industries' divergent needs. Part I summarizes the obviousness standard's history in patent law. Part II illustrates how the IT and pharmaceutical industries have divergent needs. Part III describes why using a single standard for the obviousness inquiry is inadequate to meet the needs of both the IT and pharmaceutical industries. Part IV illustrates why the obviousness standard needs to be specifically tailored for the IT and pharmaceutical industries. Finally, Part V concludes that a dual standard for obviousness ...


The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane Oct 2010

The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane

Golden Gate University Law Review

The Ninth Circuit Court of Appeals issued three landmark decisions in 2007 that addressed how copyright protections apply to images that can be accessed over the Internet. Internet publisher Perfect 10 initiated these lawsuits based on allegations that its registered copyrights were infringed when unauthorized copies of its photographs appeared on third-party websites where they could be viewed, downloaded, and purchased without payment to Perfect 10. This Article briefly summarizes the facts of these three cases, explains the central holdings of each decision, and then concludes with a discussion of the collective impact that the three decisions have on enforcement ...


Patenting The Diagnosis Of A Disease: The Scope Of Patentable Subject Matter Based On Labcorp V. Metabolite Labs, Timothy J. Ohara Oct 2010

Patenting The Diagnosis Of A Disease: The Scope Of Patentable Subject Matter Based On Labcorp V. Metabolite Labs, Timothy J. Ohara

Golden Gate University Law Review

Currently, a method of diagnosing a disease can be broadly claimed in a patent. The United States Supreme Court initially granted certiorari in Metabolite Labs to decide whether the method-of-diagnosis claim was patentable. Later, the Court dismissed certiorari as improvidently granted. This Note asserts that the Court should have adjudicated the case because there is a great need to clarify what is patentable subject matter for method claims that do not entail a physical transformation of matter, particularly in view of the seeming inconsistency between Diamond v. Diehr and State Street Bank & Trust Co. v. Signature Financial Group.


Newton V. Diamond: When A Composer's Market Is Not The Average Joe: The Inadequacy Of The Average-Audience Test, Reid Miller Oct 2010

Newton V. Diamond: When A Composer's Market Is Not The Average Joe: The Inadequacy Of The Average-Audience Test, Reid Miller

Golden Gate University Law Review

This Note will discuss how the Ninth Circuit incorrectly adopted the average-audience test because the test has become overbroad in its application, is ill-equipped to deal with the issues of complex modern music, and has drifted from the fundamental purpose of copyright law. The Ninth Circuit should have adopted the intended- audience test, which looks to the reaction of those with the expertise required to understand the language of the work and more truly reflects the fundamental purpose of copyright law: the protection of the creator's market.


Mercexchange V. Ebay: Should Newsgroup Postings Be Considered Printed Publications As A Matter Of Law In Patent Litigation?, Zhichong Gu Oct 2010

Mercexchange V. Ebay: Should Newsgroup Postings Be Considered Printed Publications As A Matter Of Law In Patent Litigation?, Zhichong Gu

Golden Gate University Law Review

Part I of this Note provides a brief background concerning eBay's method of doing business, its subsequent litigation with MercExchange and the applicable patent law. Part II presents relevant facts about newsgroups and other types of internet documents. Part III discusses eBay's invalidity defense used in its case against MercExchange's patents. The legal issue - whether a newsgroup posting should be considered a printed publication within the meaning of the patent statutes - arises from eBay's invalidity defense. As it turns out, the district court's ruling on this issue in MercExchange v. eBay conflicts with the relevant ...


Freedom Of Information Act And Libraries, Katherine A. Bullen Oct 2010

Freedom Of Information Act And Libraries, Katherine A. Bullen

B Sides

The Freedom of Information Act (FOIA) makes government information accessible to everyone, including libraries and library patrons. The Patriot Act has undermined the FOIA and put the freedom to read at risk.


Neutralizing Actual Controversy: How Patent Holders Can Reduce The Risk Of Declaratory Judgment In Patent Disputes, Homer Yan-Hsien Hsu Oct 2010

Neutralizing Actual Controversy: How Patent Holders Can Reduce The Risk Of Declaratory Judgment In Patent Disputes, Homer Yan-Hsien Hsu

Washington Journal of Law, Technology & Arts

Alleged patent infringers may bring declaratory judgment actions against patentees when actual controversies exist over infringement or validity. Such declaratory judgment actions are important strategic tools because they allow alleged infringers to take initiative and bring actions, thereby eliminating the risk of doing business without knowing whether continued product use would constitute infringement. Declaratory judgment actions also provide alleged infringers an opportunity to choose the forum in which to bring their suits. In order to bring such an action, however, there must be an actual controversy between the parties to establish standing. The United States Supreme Court’s 2007 decision ...


Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan Oct 2010

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor ...


Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter Oct 2010

Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter

Nevada Law Journal

No abstract provided.


Semiotics 101: Taking The Printed Matter Doctrine Seriously, Kevin Emerson Collins Oct 2010

Semiotics 101: Taking The Printed Matter Doctrine Seriously, Kevin Emerson Collins

Indiana Law Journal

The printed matter doctrine is a branch of the section 101 doctrine of patent eligibility that, among other things, prevents the patenting of technical texts and diagrams. The contemporary formulation of the doctrine is highly problematic. It borders on incoherency in many of its applications, and it lacks any recognized grounding in the Patent Act. Yet, despite its shortcomings, courts have not abandoned the printed matter doctrine, likely because the core applications of the doctrine place limits on the reach of the patent regime that are widely viewed as both intuitively "'correct" and normatively desirable. Instead of abandoning the doctrine ...


Private Ordering And Orphan Works: Our Least Worst Hope?, Keith Porcaro Sep 2010

Private Ordering And Orphan Works: Our Least Worst Hope?, Keith Porcaro

Duke Law & Technology Review

The political capture of copyright law by industry groups has inadvertently led to orphan works problems arising in less organized industries, such as publishing. Google Book Search (GBS) is a prime example of how private ordering can circumvent legislative inefficiencies. Digital technologies such as GBS can open up a new business model for publishers and other content industries, centered around aggregated rights holdings. However, the economic inertia that private ordering represents may pose a threat to the knowledge-oriented goals of copyright law.


Intellectual Property - Brookfield Communications, Inc. V. West Coast Entertainment Corp., Patricia Elizabeth Caldwell Sep 2010

Intellectual Property - Brookfield Communications, Inc. V. West Coast Entertainment Corp., Patricia Elizabeth Caldwell

Golden Gate University Law Review

In Brookfield Communications, Inc. v. West Coast Entertainment Corp., the United States Court of Appeals for the Ninth Circuit discusses whether trademark or unfair competition laws prohibit the use of another's trademark in its web site's domain name and metatag. The court concluded there was a likelihood of confusion between the marks. Therefore, using the mark in the web site's domain name constitutes trademark infringement. In addition, using the mark in the site's metatag created initial interest confusion.


Don't Be Cruel: Scope Of Parody Curtailed In Elvis Presley Enterprises, Inc. V. Capece, Deborah Wright Sep 2010

Don't Be Cruel: Scope Of Parody Curtailed In Elvis Presley Enterprises, Inc. V. Capece, Deborah Wright

Golden Gate University Law Review

This Note explores how the Fifth Circuit limited the legal boundaries of parody in the context of trademark law. Section II provides a background of trademark law and how parody fits into a court's determination as to whether infringement has occurred. Section III presents the facts and procedural history of the case, including the district court's analysis. In Section IV, this Note examines how the Fifth Circuit Court of Appeal approached the application of parody in the trademark context. Finally, Section V discusses the severe limitation on the legal use of parody set forth by the Fifth Circuit ...