Law Commons^™

Keynote Address: Stalemate Or Statesmen: What Is Needed To Move Forward Constructively With The Balancing Of America's Ip System?, David J. Kappos

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Trademark Extortionist Revisited: A Response To Vogel And Schachter, Kenneth L. Port

Chicago-Kent Journal of Intellectual Property

Trademark bullying (a.k.a. trademark extortion) is a very controversial notion in trademark litigation in the United States. There, for sure, is a lot of illegitimate trademark infringement happening. Anecdotally, we also know that trademark holders often overstep in the assertion of their otherwise legitimate rights. For the first time, this article documents how large a problem trademark bullying is and how often it happens. Trademark bullying occurs when there is evidence that a trademark holder asserts a non-famous mark against a non-competing entity on or in connection with goods or services into which the plaintiff has no reasonable expectation of …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Seventh Circuit Holds That Bankruptcy Trustee's "Strong-Arm" Powers Not Strong Enough For The Irs, Paul T. Geske

Seventh Circuit Review

In 2014, the U.S. Court of Appeals for the Seventh Circuit confronted, for the first time, the issue of whether a bankruptcy trustee can claw back assets that a bankrupt debtor fraudulently transferred to the federal government. Generally, government entities are immune to suit due to sovereign immunity, but the Bankruptcy Code abrogates federal sovereign immunity as to a number of Code provisions. One such provision is Section 544(b), often referred to as the source of the bankruptcy trustee's "strong-arm" powers. The strong-arm powers allow trustees to avoid transfers that would be fraudulent and voidable under state law. However, these …

Marriage Solemnization And The First Amendment's Neutrality Principle: Who May Solemnize A Marriage?, Claudia Cortes

Seventh Circuit Review

The most fundamental principle of the Establishment Clause is government neutrality towards religion. Pursuant to this principle of neutrality, the government may accommodate religious beliefs, but it can neither prefer religion over non-religion nor favor certain religious beliefs. In most states, a marriage does not become legal upon the state's mere issuance of a marriage license. Instead, marriage solemnization is required to create a legally recognized marriage. Marriage solemnization refers to a ceremony or a ritual by which two individuals take on their new status as husband and wife as well as to the set of procedures that must be …

Plead Guilty, You Could Face Deportation: Seventh Circuit Rules Misadvice And Nonadvice To Non-Citizens Has Same Effect Under The Sixth Amendment, Dana Cronkite

Seventh Circuit Review

The Sixth Amendment right to assistance of counsel has evolved since its inception. Originally, the right only meant that criminal defendants in federal cases were entitled to assistance of counsel of their choosing. The right was eventually applied to state criminal proceedings, and later interpreted to mean that criminal defendants had a right to effective assistance of counsel. This right is imperative in protecting a defendant's fundamental right to a fair trial. In 1984, the Supreme Court laid out a two-part test to determine whether a defendant's Sixth Amendment rights were violated by ineffective assistance of counsel. This test, known …

Unreasonable Religious Accommodation?: Fighting Irish Challenge The Opt-Out Form To The Affordable Care Act's "Contraceptive Mandate", Emily A. Herbick

Seventh Circuit Review

The Patient Protection and Affordable Care Act of 2010 (ACA) has been controversial from its inception, especially in regard to the "contraceptive mandate," which requires certain employers with group health plans to provide contraceptive coverage for their female employees without cost-sharing. In order to respect both the federal statutory right to contraceptive coverage and the religious rights of employers who provide health insurance for their employees, regulations were promulgated that provided exceptions to the contraceptive mandate. For example, religious employers who incorporate as non-profits are exempt from providing contraceptive coverage to their employees under the ACA. To receive this accommodation, …

Ka Bow! Seventh Circuit Knocks Down Trademark Claim, Sarah B. Virani

Seventh Circuit Review

Integral to the success of a business is its ability to protect its trademark. When another individual or business infringes upon a business's trademark, the infringed user can bring a claim under the Lanham Act, which codifies federal trademark law, in part to protect consumers from confusion as to the source of a product or service. An essential question is whether a trademark holder may, under the Lanham Act, bring a successful claim for trademark infringement against another for a fictional product.

The Seventh Circuit addressed this matter in Fortres Grand Corporation v. Warner Bros. Entertainment, in which the …

Katz And Dogs: The Best Path Forward In Applying United States V. Davis' Good Faith Exception To The Exclusionary Rule And How The Seventh Circuit Has Gone Astray, Arlo Walsman

Seventh Circuit Review

Sometimes, law enforcement officers violate the Fourth Amendment and in the process find and seize evidence they wish to use in a subsequent criminal prosecution. In these circumstances, a question that has long troubled courts, and a question that is becoming more and more difficult to answer, is whether such evidence should be admissible at trial.

In Weeks v. United States and Mapp v. Ohio, the Supreme Court established that evidence seized in violation of the Fourth Amendment was not admissible in federal and state prosecutions. This rule has become known as the exclusionary rule. However, in a line …

Silent Similarity, Jessica Litman

Chicago-Kent Journal of Intellectual Property

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart …

Federal Circuit's Obviousness Test For New Pharmaceutical Compounds: Gobbledygook?, Douglas L. Rogers

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Restoring The Balancing Test: A Better Approach To Fair Use In Copyright, Charlie Penrod

Chicago-Kent Journal of Intellectual Property

Fair use analyses are overly vague and abstract. While the Copyright Act established four factors for courts to consider when determining if an alleged infringer’s use of copyrighted work is “fair”, these factors are not susceptible to easy interpretation. More importantly, once these factors have been interpreted, a trier of fact is instructed to balance these factors against each other. No effective method currently exists in guiding courts as to how to balance inherently disparate factors against each other, either in terms of intensity of the factors or how one factor might balance against another totally different factor. This article …

The End Of (Meta) Search Engines In Europe?, Martin Husovec

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Patent, But Where Is Home And Global Justice? A Rawlsian And Senian Inquiry, Deming Liu

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Mourning The Loss Of Copyright's Unsung Hero: Destruction Of The First Sale Doctrine, C. Todd Mosley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Mind-Movies: Original Authorship As Applied To Works From "Mind-Reading" Neurotechnology, Theo Austin Bruton

Chicago-Kent Journal of Intellectual Property

U.S. courts frequently analyze new technology under copyright law. Over the years, the courts have applied copyright law to photographic cameras, computer programs, digital video recorders, and much more. However, a recent breakthrough in the neuroscience community may force judges to apply copyright standards in an unorthodox fashion. A group of researchers at UC Berkeley devised a process that reconstructs video sequences from the human brain, essentially creating a movie from the person’s mind. As this neurotechnology develops, it is uncertain how judges will apply copyright law to content taken directly from the brain. Nevertheless, this Article argues that such …

Keeping It Under Wraps: Trade Secrecy For Offshore Asset Protection Plans, Thomas A. Brunty

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Reconciling Twombly And Patent Pleadings Beyond The Text Of Form 18, Yoonhee Kim

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Saving The Federal Circuit, Paul R. Gugliuzza

Chicago-Kent Journal of Intellectual Property

In a recent, attention-grabbing speech, the Chief Judge of the Seventh Circuit, Diane Wood, argued that Congress should abolish the Federal Circuit’s exclusive jurisdiction over patent cases. Exclusive jurisdiction, she said, provides too much legal uniformity, which harms the patent system. In this response to Judge Wood’s thoughtful speech, I seek to highlight two important premises underlying her argument, neither of which is indisputably true.

The first premise is that the Federal Circuit actually provides legal uniformity. Judge Wood suggests that, due to the Federal Circuit’s exclusive jurisdiction, patent doctrine is insufficiently “percolated,” meaning that it lacks mechanisms through which …

Abolishing Exclusive Jurisdiction In The Federal Circuit: A Response To Judge Wood, Rochelle C. Dreyfus

Chicago-Kent Journal of Intellectual Property

Part of a symposium of responses to Chief Judge Wood’s suggestion for giving regional circuits a share of the Federal Circuit’s authority over patent law, this article argues that now that a degree of nationwide uniformity in patent law has been achieved, it would be a pity to disrupt it. While Chief Judge Wood is right that the law would improve with percolation, a change in the composition of the court, new procedures for challenging patents in the Patent and Trademark Office, a District Court pilot program, and satellite patent offices will bring to the debate new voices, different kinds …

It’S Blonder-Tongue All Over Again, Alex Kozinski, Daniel Mandell

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Competing With The “Patent Court”: A Newly Robust Ecosystem, Arti K. Rai

Chicago-Kent Journal of Intellectual Property

In a provocative address, Chief Judge Wood of the Seventh Circuit Court of Appeals suggests exposing the Court of Appeals for the Federal Circuit, created in 1982 to hear all appeals from patent cases, to competition from sister appellate courts. This response, published as part of a Symposium on Chief Judge Wood's address, argues that competition is indeed desirable. Whether such competition is best provided by other appellate courts is unclear, however. The more tractable approach is to improve competitive input from sources that have already emerged. These include dissenting Federal Circuit judges, parties and amici who are not "patent …

Federal Circuit Exclusive Appellate Patent Jurisdiction: A Response To Chief Judge Wood, Harold C. Wegner

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Globalizing Standard Of Patent Protection In Wto Law And Policy Options For The Ldcs: The Context Of Bangladesh, M. Monirul Azam

Chicago-Kent Journal of Intellectual Property

This Article analyzes the globalizing standard of patent protection as adopted under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) and possible options for the Least Developed Countries (LDCs) such as Bangladesh against the experiences of Brazil, India, and South Africa with special reference to pharmaceutical patent issues.

Managing The Changes To The Oath Or Declaration Requirement: The Effect Of The Leahy-Smith America Invents Act Oath Or Declaration Change On Corporations, Adam Thompson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Online Tracking: Can The Free Market Create Choice Where None Exists?, Benjamin Strauss

Chicago-Kent Journal of Intellectual Property

No abstract provided.

That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie

Chicago-Kent Law Review

This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance …

Assessing The Board Of Immigration Appeals' Social Visibility Doctrine In The Context Of Human Trafficking, Kathleen M. Mallon

Chicago-Kent Law Review

United States asylum law provides individuals who have been persecuted in their country of origin with residency in the United States. Membership in a “particular social group” (PSG) confers refugee status on individuals applying for asylum in the United States. The Board of Immigration Appeals (BIA) initially defined a PSG as a group composed of members who all share an immutable characteristic, that is, an unchangeable characteristic or one so fundamental to an individual’s identity that they should not be required to change it. This test functioned well for over a decade; however, the BIA added an additional requirement to …

Table Of Contents, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Introduction: The Making Of A Canonical Legal Historian, Felice Batlan, R. B. Bernstein

Chicago-Kent Law Review

No abstract provided.