Law Commons^™

Not All Patents Are Created Equal: Bias Against Predictable Arts Patents In The Post-Ksr Landscape, David Tseng

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak

Chicago-Kent Journal of Intellectual Property

Significant recent judicial and legislative developments have changed the way litigants and counsel need to plan for and litigate inequitable conduct allegations. Exergen and Therasense have heightened the standards for pleading and proving inequitable conduct, respectively, and Congress has expanded the patentee’s post-grant options for preempting or defeating inequitable conduct challenges. Without a doubt, the inequitable conduct litigation landscape has changed. Careful, thorough consideration of all of these developments and their implications is a must for any litigant or counsel faced with or considering asserting a charge of inequitable conduct. This paper discusses these significant recent inequitable conduct-related developments and …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Expanding The Scope Of The Federal Arbitration Act: An Examination Of The Seventh Circuit's Opinion In Green V. U.S. Cash Advance, Illinois, Llc, Christine L. Milkowski

Seventh Circuit Review

The Roberts Court's expansive interpretation of the Federal Arbitration Act (FAA) has ushered in a new era of pro-arbitration jurisprudence, allowing lower courts to categorically enforce arbitration agreements. Underlying this zealous application is Section 2 of the FAA, which states that arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract."

In Green v. U.S. Cash Advance, Illinois, LLC, the Seventh Circuit enforced an arbitration agreement between a consumer and payday lender, despite the fact that the named arbitration forum had been unavailable since the …

Distinguishing The Corporal From The Divine: Legal Fictions Create Bodies Not Souls, Daisy Ayllon

Seventh Circuit Review

Can a for-profit, secular corporation exercise religion? If so, does the Affordable Care Act's requirement that employer-provided health insurance plans offer women of reproductive age contraceptives violate free exercise rights?

Plaintiffs challenging the "contraceptive mandate," as it is commonly known, argue that it violates their rights under the Religious Freedom Restoration Act (RFRA) because it imposes a substantial burden on their religious exercise without meeting strict scrutiny. Although these challenges do present courts with a novel issue (whether a secular, for-profit corporation is a "person" capable of "exercising religion"), the answer to the broader question should be clear: requiring corporate-provided …

A Sight For Sore Eyes: The Seventh Circuit Correctly Interprets Section 12 Of The Clayton Act, Ryan Moore

Seventh Circuit Review

In order to hail a defendant into federal court, a plaintiff must establish personal jurisdiction and venue. Under general principles of federal law, personal jurisdiction is proper whenever the defendant would be amenable to suit under the laws of the state in which the federal court sits. And venue is proper in any district where the defendant "resides" (i.e., is subject to personal jurisdiction). Section 12 of the Clayton Act, however, supplements these general principles. It has a liberal service-of-process provision that allows personal jurisdiction in any federal district court in the nation. But venue is proper only in the …

Honor Thy Father And Thy Mother: Religious Accommodation Under Title Vii In Adeyeye V. Heartland Sweeteners, Llc, Zeke Katz

Seventh Circuit Review

Title VII of the Civil Rights Act provides that an employer must reasonably accommodate an employee's request for a leave of absence due to a religious observance or practice, as long as that accommodation does not present an undue hardship for the employer. The amendments to Title VII, and the Guidelines issued by the Equal Opportunity Employment Commission in response to Title VII, reveal a trend towards a broad interpretation of religious accommodation in the workplace. The Seventh Circuit Court of Appeals continued and exemplified this trend in Adeyeye v. Heartland Sweeteners, LLC.

In Adeyeye, where an employee …

Chain Gang: Examining The Seventh Circuit's "Chain Of Distribution Test" When Applying Minimum Sentences For Drug-Related Deaths, David Starshak

Seventh Circuit Review

If a person dies or is seriously injured after using illegal drugs, the person who sold them the drugs is subject to mandatory minimum sentences under 21 U.S.C. § 841(b). But what happens when the person who sold the drug is a member of a drug distribution conspiracy? How can the courts go after the other members of that organization?

The Seventh Circuit answered these questions in United States v. Walker, when it held that other members of the conspiracy could also be subject to § 841(b)'s minimum sentences as long as they were within the "chain of distribution" …

Gender Plus One: Broadening Judicial Interpretation Of Gender-Based Social Group Formulations, Andrea Coutu

Seventh Circuit Review

Individuals seeking asylum must prove past persecution or a well-founded fear of persecution on account of one of five protected grounds, one ground being membership in a particular social group. In Matter of Acosta, the Board of Immigration Appeals defined a social group as a group of persons who share an immutable characteristic, meaning a characteristic that is either unchangeable or fundamental to one's identity or conscience such that the person should not be required to change. Despite listing sex as an immutable characteristic in Acosta, courts are reluctant to accept social group formulations based on gender alone. …

Your Call Is Now Being Monitored: Should Municipalities Be Liable For Unauthorized Wiretapping?, Mckenna M. Prohov

Seventh Circuit Review

In Seitz v. City of Elgin, the Seventh Circuit ruled that the Federal Wire Tapping Act (FWA) does not authorize a civil lawsuit against a municipality for intentionally disclosing or using electronic communications. While amendments to the FWA have expanded the potential scope of liability to reach municipalities, the court said in an opinion by Judge Joel M. Flaum that they did so only as a means of vindicating rights stated elsewhere in the Act. The decision created a circuit split, because the Sixth Circuit previously found that the FWA amendments brought municipalities within the potential ambit of liability. …

Advantageous Attacks: The Role Of Advantage In Targeting People Under The Law Of Armed Conflict, Krista Nelson

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

How To Really Engage Iran: A Proposal, Amit K. Chhabra

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Toward A New Human Rights Paradigm: Integrating Hitherto Neglected Traditional Values Into The Corpus Of Human Rights And The Legitimacy Question, Obiajulu Nnamuchi

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Child Soldiers To War Criminals: Trauma And The Case For Personal Mitigation, Lucia H. Seyfarth

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

The International Criminal Court, The United States, And The Domestic Armed Conflict In Syria, Eric Engle

Chicago-Kent Journal of International and Comparative Law

No abstract provided.

Keynote Address: Is It Time To Abolish The Federal Circuit's Exclusive Jurisdiction In Patent Cases?, Diane P. Wood

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Open Innovation In Plant Genetic Resources For Food And Agriculture, Chidi Oguamanam

Chicago-Kent Journal of Intellectual Property

Contemporary global order for the promotion of innovation exaggerates the role of intellectual property (IP) as a closed proprietary model of knowledge production and protection. Partly as a boomerang effect of that order or partly as a coincidence of the phenomenal rise in the information and communication technologies or both, there has been increased gravitation toward open, collaborative, shared, communal and interdependent models of innovation. This trend is typified by the rise of open software movement and cognate endeavours. The article attempts to transpose the open innovation dynamic to the context of plant genetic resources for food and agriculture (PGFA); …

Recent Decisions Provide Some Clarity On How Courts And Government Agencies Will Likely Resolve Issues Involving Standard-Essential Patents, Steven M. Amundson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Phoenix Rising? On The Fall And Potential New Rise Of State Trademark Rights, Charles Mcmanis, Henry Biggs

Chicago-Kent Journal of Intellectual Property

This article addresses the historical interplay of federal, state and common law trademark rights as they relate to the scope of geographic protection. The article looks closely at the narrow context where federal trademark law may arguably provide for state trademark law to prevail. The article notes, however, that the specific state trademark language necessary for that state trademark right to prevail has slowly vanished from most state trademark statutes. Yet while the door has seemed to be closing in this area, a relatively recent case, National Ass'n for Healthcare Communications, Inc. v. Central Arkansas Area Agency on Aging, Inc, …

Hijacking Shared Heritage: Cultural Artifacts And Intellectual Property Rights, Amy Hackney Blackwell, Christopher William Blackwell

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Canada's Inadequate Legal Protection Against Industrial Espionage, Emir Crowne, Tasha De Freitas

Chicago-Kent Journal of Intellectual Property

Canadian law provides little protection for individuals and corporations against industrial espionage. Akin to the United States' Economic Espionage Act of 1996-with its broad definition of "trade secret" and accompanying protections and remedies-we propose that Canada enact legislation at the federal level to remedy many of the deficiencies that arise in bringing a claim under the usual breach of confidence action.

All Together Now: The Family Of Marks Doctrine In The Era Of Apple, Inc., Austin Berger

Chicago-Kent Journal of Intellectual Property

While a significant doctrine within common law trademark, the family of marks doctrine has not been utilized by as many dominant corporations within the fifty years since its creation as one might expect. This may be because the doctrine and its analysis remains rather opaque with little substantive legal research devoted to its history and framework and with a pastiche of case law that, on first blush, fails to signal a clear, uniform approach among the circuits. The doctrine itself, however, has been a deft tool in the hands of certain corporations who have used it to protect the prized …

Patent Litigation Attorneys' Fees: Shifting From Status To Conduct, Daniel Roth

Chicago-Kent Journal of Intellectual Property

Abusive patent assertion results in deadweight losses to society. Faced with the high cost of patent litigation, companies often settle for an amount equal to a fraction of the cost of defending a patent infringement suit. This allows the patent owner to extract settlements from many individuals without the risk of invalidation before a federal court. Shifting attorneys' fees to the prevailing party is a remedy courts award in exceptional cases to deter patent owners from bringing unreasonable claims of infringement and to return defendants to the position they were in prior to litigation. Current fee-shifting proposals target patent assertion …

Next Generation Copyright Misuse, Rebecca Sundin

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Rebuttable Presumption Of Public Interest In Protecting The Public Health --The Necessity For Denying Injunctive Relief In Medically-Related Patent Infringement Cases After Ebay V. Mercexchange, Lance Wyatt

Chicago-Kent Journal of Intellectual Property

The public’s interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court’s holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies. Unfortunately, this has not been the course that …

Free Riders At The Drugstore: Generics, Consumer Confusion, And The Public Good, Kelley Clements Keller Esq.

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Chicago-Kent Journal of Intellectual Property

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

The Illusion Of Copyright Infringement Protection, Jenny Small

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R.K. Stroud

Chicago-Kent Journal of Intellectual Property

Current theories governing trade secrets law incompletely and inadequately protect substantial investment in innovation, rendering them inefficient, reactionary, and largely illusory. Trade secret law exists to fill a gap between other forms of intellectual property and to encourage substantial investment in innovation and to recoup the time and money expended pursuing it, to the long-term benefit of the greater public good. Without strong trade secret protections, the “tragedy of the commons” would lead to the unfair destruction of the fruits of capital and labor and discourage investment in activities calculated to benefit the public, thus hurting our society. I propose …

If Only We Knew What We Know, Conrad Johnson, Brian Donnelly

Chicago-Kent Law Review

This article contributes to the broader themes surrounding law and technology raised in this symposium by taking a look at lawyering and knowledge management. This topic is presented both as a theory and with a case study. The first part provides a brief summary of the basic lawyering paradigm used in the Lawyering in the Digital Age Clinic at Columbia Law School—that all lawyering activities can be understood within the context of gathering, managing and presenting information. The second category of the paradigm is expanded upon to review the activity of managing knowledge. Then, knowledge management is positioned as the …