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Articles 31 - 60 of 240
Full-Text Articles in Law
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth L. Okediji
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth L. Okediji
Michigan Telecommunications & Technology Law Review
In 2011, the United States was only just beginning to emerge from what some claimed to be the most significant economic crisis since the Great Depression. The devastation wrought by unregulated subprime mortgages unfolded as a political, legal, financial and social tragedy. Millions of homeowners had purchased homes for amounts they most certainly could not afford, with terms and conditions written on documents they even more certainly had never read. Many of those most severely affected were, as one might expect, racial minorities and underrepresented groups, but plenty of other members of society were also caught in the intricately woven …
Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump
Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump
Michigan Telecommunications & Technology Law Review
High-frequency trading has become a darling of capital markets debate. This debate thrives because the true and long-lasting effects of high-frequency trading are still unknown. On one hand, high-frequency trading evidences recent and powerful advances in trading technology; on the other, it is said to harness speed at the expense of fairness, prudence, and stability. In part because of this duality, the regulation of high-frequency trading in the United States has been slow to develop. Other nations, however, have been quicker to react and to promulgate laws that directly, or indirectly, affect high-frequency trading. This Note explores the legal responses …
Loopholes For Circumventing The Constitution: Unrestrained Bulk Surveillance On Americans By Collecting Network Traffic Abroad, Axel Arnbak, Sharon Goldberg
Loopholes For Circumventing The Constitution: Unrestrained Bulk Surveillance On Americans By Collecting Network Traffic Abroad, Axel Arnbak, Sharon Goldberg
Michigan Telecommunications & Technology Law Review
This Article reveals interdependent legal and technical loopholes that the US intelligence community could use to circumvent constitutional and statutory safeguards for Americans. These loopholes involve the collection of Internet traffic on foreign territory, and leave Americans as unprotected as foreigners by current United States (US) surveillance laws. This Article will also describe how modern Internet protocols can be manipulated to deliberately divert American’s traffic abroad, where traffic can then be collected under a more permissive legal regime (Executive Order 12333) that is overseen solely by the executive branch of the US government. Although the media has reported on some …
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Michigan Telecommunications & Technology Law Review
The third-party doctrine is a long-standing tenant of Fourth Amendment law that allows law enforcement officers to utilize information that was released to a third party without the probable cause required for a traditional search warrant. This has allowed law enforcement agents to use confidential informants, undercover agents, and access bank records of suspected criminals. However, in a digital age where exponentially more information is shared with Internet Service Providers, e-mail hosts, and social media “friends,” the traditional thirdparty doctrine ideas allow law enforcement officers access to a cache of personal information and data with a standard below probable cause. …
Sherlock Holmes And The Case Of The Lucrative Fandom: Recognizing The Economic Power Of Fanworks And Reimagining Fair Use In Copyright, Stacey M. Lantagne
Sherlock Holmes And The Case Of The Lucrative Fandom: Recognizing The Economic Power Of Fanworks And Reimagining Fair Use In Copyright, Stacey M. Lantagne
Michigan Telecommunications & Technology Law Review
Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on …
No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst
No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst
Michigan Telecommunications & Technology Law Review
In modern society, the cell phone has become a virtual extension of most Americans, managing all kinds of personal and business matters. Modern cell tower technology allows cell service providers to accumulate a wealth of individuals’ location information while they use their cell phones, and such data is available for law enforcement to obtain without a warrant. This is problematic under the Fourth Amendment, which protects reasonable expectations of privacy. Under the Katz two-prong test, (1) individuals have an actual, subjective expectation of privacy in their cell site location data, and (2) society is prepared to acknowledge that expectation as …
More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller
More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller
Michigan Telecommunications & Technology Law Review
Although many developing economies are increasingly influencing the global economy, China’s influence has been the greatest of these by far. Once hindered from competition by political and economic restrictions, China is now a major economic player. As China’s economic might has grown, so too has the demand for intellectual property protection for technologies originating from China. In this article, we present a detailed empirical study of Chinese patenting trends in the United States and the implications of these trends for the global economy. We compare these trends to patenting trends from earlier decades. Specifically, we compare Chinese patenting trends to …
Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane
Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane
Michigan Telecommunications & Technology Law Review
Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …
Judicial Capacities And Patent Claim Construction: An Ordinary Reader Standard, Greg Reilly
Judicial Capacities And Patent Claim Construction: An Ordinary Reader Standard, Greg Reilly
Michigan Telecommunications & Technology Law Review
Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. The claim construction debate largely overlooks the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, …
Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim
Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim
Michigan Telecommunications & Technology Law Review
This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it …
Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff
Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff
Michigan Telecommunications & Technology Law Review
“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Michigan Telecommunications & Technology Law Review
In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed “Type I predictability”)— whether the inventor used the prior art in a predictable manner to create the invention—and predictability of the result (hereinafter termed “Type II predictability”)—whether the invention produced a predictable result—both as a means for proving obviousness. Although Type I predictability is easily explained as …
Markets And Patent Enforcement: A Comparative Investigation Of Non-Practicing Entities In The Unitedstates And Europe, Stefania Fusco
Markets And Patent Enforcement: A Comparative Investigation Of Non-Practicing Entities In The Unitedstates And Europe, Stefania Fusco
Michigan Telecommunications & Technology Law Review
Is it true that non-practicing entities (NPEs) are primarily a U.S. phenomenon? Over time, several definitions of NPEs have been presented. They range from research institutions that hold patent portfolios for their inventions but do not develop and commercialize any products, to IP asset management firms whose exclusive business is asserting patent claims to collect significant fees from companies operating in certain industries. The latter are also referred to as “patent trolls” and have been the subject of significant debate as to their role in the innovative process in different fields. NPEs are a relatively new phenomenon. Studies have shown …
Structure From Nothing And Claims For Free: Using A Whole-System View Of The Patent System To Improve Notice And Predictability For Software Patents, Holly K. Victorson
Structure From Nothing And Claims For Free: Using A Whole-System View Of The Patent System To Improve Notice And Predictability For Software Patents, Holly K. Victorson
Michigan Telecommunications & Technology Law Review
No uniform or customary method of disclosure for software patents is currently employed by inventors. This Note examines the issues that develop from software patent claims disclosed at various levels of abstraction, and the difficulties encountered by courts and the public when investigating the contours of the software patent space. While the courts have placed some restrictions on the manner in which software inventions are claimed, they are easily bypassed by clever patent applicants who desire to claim the maximum scope of their inventions. In the long run, however, a large “patent thicket” of overlapping and potentially overbroad inventions will …
Jurisdictional Limits Of In Rem Proceedings Against Domain Names, Michael Xun Liu
Jurisdictional Limits Of In Rem Proceedings Against Domain Names, Michael Xun Liu
Michigan Telecommunications & Technology Law Review
In 1999, Congress passed the Anticybersquatting Consumer Protection Act (ACPA) to combat “cybersquatters” who profited by registering domain names that were confusingly similar to established trademarks. Under the ACPA, trademark owners have a specific cause of action against domain name registrants accused of cybersquatting. Moreover, the law gives U.S. courts in rem jurisdiction over trademark infringing domain names registered to parties that are not subject to personal jurisdiction. Over the past decade, proceeding in rem against domain names has proven to be an effective strategy for trademark owners. While many companies have used the ACPA against cybersquatters, others have relied …
Holding Up And Holding Out, Colleen V. Chien
Holding Up And Holding Out, Colleen V. Chien
Michigan Telecommunications & Technology Law Review
Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it is most vulnerable—after it has implemented a technology—and is able wrest a settlement because it is too late for the company to change course. Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises, and the ex ante assertion of technology patents whether in the smartphone war, standards, or patent “troll” context. …
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Michigan Telecommunications & Technology Law Review
This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …
After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough
After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough
Michigan Telecommunications & Technology Law Review
35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the …
District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji
District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji
Michigan Telecommunications & Technology Law Review
Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …
A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance
A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance
Michigan Telecommunications & Technology Law Review
When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …
Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg
Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg
Michigan Telecommunications & Technology Law Review
Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.
Interactive Methods And Collaborative Performance: A New Future For Indirect Infringement, Josh Rychlinski
Interactive Methods And Collaborative Performance: A New Future For Indirect Infringement, Josh Rychlinski
Michigan Telecommunications & Technology Law Review
An individual is liable for patent infringement if he infringes one or more patented claims either directly under 35 U.S.C. § 271(a) or indirectly under 35 U.S.C. § 271(b) or § 271(c). In 2012, the Federal Circuit clarified its interpretation of § 271(b) and § 271(c) in the case of Akamai v. Limelight. However, the court failed to address issues of “divided” direct infringement, where two or more entities combine and together complete each and every step of a method claim, but no single entity does all of the steps. This Note walks through the history of the judicial interpretation …
Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing, Alexa L. Nickow
Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing, Alexa L. Nickow
Michigan Telecommunications & Technology Law Review
What level of First Amendment protection should we afford tattooing? General public consensus formerly condemned tattoos as barbaric, but the increasingly diverse clientele of tattoo shops suggests that tattoos have become more mainstream. However, the law has struggled to adjust. The recent proliferation of municipal near-bans on tattooing has brought tattooing to the forefront of First Amendment debates, with cases such as Anderson and Coleman leading the way toward recognizing tattooing as pure speech. Tensions between formal and informal copyright norms in the tattoo industry further highlight the collaborative and expressive nature of the artist-customer relationship and its resulting products, …
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Michigan Telecommunications & Technology Law Review
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about federal administration of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission (“FCC”) should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a …
Private Copyright Reform, Kristelia A. García
Private Copyright Reform, Kristelia A. García
Michigan Telecommunications & Technology Law Review
The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed “private copyright reform,” presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can …
Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance
Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance
Michigan Telecommunications & Technology Law Review
Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …
The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor
The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor
Michigan Telecommunications & Technology Law Review
The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"--the recipients of federal funding--to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to the …
Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork
Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork
Michigan Telecommunications & Technology Law Review
Similarity is an elusive and complicated concept facing comparisons of biological molecules, as even minute changes to a molecule's structure can dramatically affect its function in the body. Yet the flood of biologic drugs on the market will increasingly force these similarity comparisons. These concerns are particularly relevant to two groups of drugs: families of biologic drugs that closely resemble each other in structure and function, here termed "similar-impact biologics," and the biosimilars, which are intended to closely approximate generic forms of biologic drugs. In bringing biologic drugs to the market, manufacturers are likely to face dual obstacles: FDA approval …
Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu
Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu
Michigan Telecommunications & Technology Law Review
When the America Invents Act ("AIA ") was signed in September 2011, many feared the law might benefit larger corporations at the expense of small businesses. This Note examines how one portion of the AIA, governing joinder in patent cases, might actually benefit small businesses by reducing patent assertions from non-practicing entities ("NPEs"). NPE assertions disproportionately affect small businesses, both because NPEs target small businesses more frequently and because patent assertions have a greater impact on individual companies. Prior to the AIA, joining multiple defendants in a single lawsuit offered important advantages for patent holders and allowed NPEs to achieve …
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Michigan Telecommunications & Technology Law Review
A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …