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Articles 1 - 30 of 88
Full-Text Articles in Law
Commentary: Willful Patent Infringement And The Federal Circuit's Pending En Banc Decision In Knorr-Bremse V. Dana Corp., 3 J. Marshall Rev. Intell. Prop. L. 218 (2004), Janice M. Mueller
Commentary: Willful Patent Infringement And The Federal Circuit's Pending En Banc Decision In Knorr-Bremse V. Dana Corp., 3 J. Marshall Rev. Intell. Prop. L. 218 (2004), Janice M. Mueller
UIC Review of Intellectual Property Law
The Federal Circuit’s recent sua sponte grant of rehearing en banc in Knorr-Bremse v. Dana Corporation has catalyzed a vocal debate concerning the nature and consequences of willful patent infringement. Subject to virtually unanimous condemnation is the Federal Circuit’s “adverse inference” rule, which forces a party accused of willful infringement to choose between two unpalatable options: (i) disclosing privileged advice of counsel to mount a willfulness defense, or (ii) not disclosing such information and being subjected to an adverse inference that an exculpatory opinion was not or could not be obtained. This commentary concurs that the adverse inference rule should …
The Inequitable Conduct Defense Lives On: 2003 Federal Circuit Decisions And Their Impact, 3 J. Marshall Rev. Intell. Prop. L. 189 (2004), Alan M. Kowalchyk, Thomas R. Johnson
The Inequitable Conduct Defense Lives On: 2003 Federal Circuit Decisions And Their Impact, 3 J. Marshall Rev. Intell. Prop. L. 189 (2004), Alan M. Kowalchyk, Thomas R. Johnson
UIC Review of Intellectual Property Law
The inequitable conduct defense remains a viable defense in patent litigation today, as illustrated in four 2003 Federal Circuit decisions. Though an alleged patent infringer must establish the elements of materiality and intent for a valid inequitable conduct defense, recent Federal Circuit decisions indicate that certain factual underpinnings bearing on materiality can raise an inference of intent. To most effectively counter this inference of intent, a plausible explanation for the questioned conduct should be provided by the patentee. However, in providing such plausible explanation, the patentee runs the risk of waiving privileged communications, which in turn may result in far …
Recent Developments In Trademark Law: The Ongoing Refinement Of Rights, 3 J. Marshall Rev. Intell. Prop. L. 258 (2004), Chad Doellinger
Recent Developments In Trademark Law: The Ongoing Refinement Of Rights, 3 J. Marshall Rev. Intell. Prop. L. 258 (2004), Chad Doellinger
UIC Review of Intellectual Property Law
The year 2003 saw a great deal of activity in the ongoing development of trademark law. While the law both reconnected with its bricks-and-mortar roots and expanded to accommodate new fact patterns in the late 1990’s and early 2000’s, 2003 saw the beginning of a doctrinal contraction, with a requirement to tie inchoate harms to empirical foundations. Additionally, several issues of first impression were resolved, including the conclusion that domain names are a form of property. While 2003 saw a contraction of trademark rights, this is not necessarily a negative development for trademark owners. Instead, courts are merely refining the …
Navigating The Bramble Bush In Idea Submission Cases, 4 J. Marshall Rev. Intell. Prop. L. 36 (2004), Lisa Pearson
Navigating The Bramble Bush In Idea Submission Cases, 4 J. Marshall Rev. Intell. Prop. L. 36 (2004), Lisa Pearson
UIC Review of Intellectual Property Law
Today’s law of idea submissions is a proverbial bramble bush for a variety of reasons. Both the legal theories of recovery and the viability of such claims differ widely from state to state. In addition, notwithstanding the vast body of idea-submission law, there are still many open issues. These complex, fact-specific cases still manage to ensnare plaintiffs and defendants alike in years of litigation. As such, finding one’s way through the bramble bush to defend against idea submission claims is a daunting task. This article provides a map designed to help the litigator navigate the thicket. Following the trail is …
Developments In Patent Law 2003, 3 J. Marshall Rev. Intell. Prop. L. 229 (2004), Bradley C. Wright
Developments In Patent Law 2003, 3 J. Marshall Rev. Intell. Prop. L. 229 (2004), Bradley C. Wright
UIC Review of Intellectual Property Law
The year 2003 provided a great deal of legislative, administrative and judicial activity in the development of patent law. Legislation has been directed to amending the Hatch-Waxman Act and abrogation of State immunity from patent infringement. The U.S. Patent and Trademark Office has adopted changes pursuant to recent amendments to the Patent Cooperation Treaty and implemented an electronic filing system for patent applications. The Federal Trade Commission has taken an interest in patents, particularly standard setting technologies. In light of the Supreme Court’s decision in Festo, the Federal Circuit has provided additional guidance for prosecution history estoppel and the doctrine …
Reducing The Need For Markman Determinations, 4 J. Marshall Rev. Intell. Prop. L. 53 (2004), Robert H. Resis
Reducing The Need For Markman Determinations, 4 J. Marshall Rev. Intell. Prop. L. 53 (2004), Robert H. Resis
UIC Review of Intellectual Property Law
The uncertainty as to whether claim interpretation decisions will survive appeal is an ever growing concern as the Federal Circuit’s reversal rate of lower court claim interpretations averages fifty percent. At a minimum, uncertainty in claim construction prolongs patent infringement disputes. Moreover, the reality is that many times it is the uncertainty of a claim’s scope and meaning that leads to litigation in the first place. In order to alleviate this stress on patentees, competitors and the federal court system, most if not all questions regarding the scope and meaning of claim terms should be clarified by the applicant during …
"Distinctive" And "Famous" - Separate Requirements Under The Federal Trademark Dilution Act?, 3 J. Marshall Rev. Intell. Prop. L. 174 (2004), M. Scott Donahey
"Distinctive" And "Famous" - Separate Requirements Under The Federal Trademark Dilution Act?, 3 J. Marshall Rev. Intell. Prop. L. 174 (2004), M. Scott Donahey
UIC Review of Intellectual Property Law
The Federal Trademark Dilution Act was promulgated to provide national protection of famous marks from uses that cause dilution of the distinctive quality of the mark. Courts consider several factors in determining whether a mark is “distinctive and famous.” However, a difference of opinion has arisen as to whether there is a difference between a “distinctive” mark and a “famous” mark. An analysis of the statutory language, pertinent historical sources, and the case law interpreting the statute leads one to conclude that the view articulated by the Second Circuit is more consistent with the language of the statute, the intent …
“Intellectual Alchemy”: Securitization Of Intellectual Property As An Innovative Form Of Alternative Financing, 3 J. Marshall Rev. Intell. Prop. L. 307 (2004), John M. Gabala Jr.
“Intellectual Alchemy”: Securitization Of Intellectual Property As An Innovative Form Of Alternative Financing, 3 J. Marshall Rev. Intell. Prop. L. 307 (2004), John M. Gabala Jr.
UIC Review of Intellectual Property Law
While asset-securitization has been around since the early 1980’s, prior to the now widely known structuring of musician David Bowie’s music catalogue into saleable bonds in 1997, music royalties and copyrights were never before used in a securitization. At the time, Bowie’s catalogue had a proven royalty track record; however, the valuation of the actual bonds remained untested in the illegal music-downloading era of today. This comment explores the benefits of intellectual property-based securitizations and their common valuation approaches. In addition, it is argued that appropriate credit enhancements should be employed to protect future Bowie bond style deals against the …
What A Long, Strange “Trips” It’S Been: Compulsory Licensing From The Adoption Of Trips To The Agreement On Implementation Of The Doha Declaration, 3 J. Marshall Rev. Intell. Prop. L. 331 (2004), Mark C. Lang
UIC Review of Intellectual Property Law
Startling numbers of people die every day because they do not have access to essential medicines and treatment for diseases such as HIV/AIDS, particularly in Africa and Asia. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was established by the World Trade Organization (WTO) to set a minimum level of protection of intellectual property rights across international borders, as well as promote and protect the welfare of humanity. This Comment reviews the history of the TRIPS Agreement, including the most recent adoption of the WTO relating to the issuance of compulsory licenses. Specifically, this Comment suggests that the …
Developments In Patent Law 2004, 4 J. Marshall Rev. Intell. Prop. L. 1 (2004), Harold C. Wegner
Developments In Patent Law 2004, 4 J. Marshall Rev. Intell. Prop. L. 1 (2004), Harold C. Wegner
UIC Review of Intellectual Property Law
There are a great number of patent law doctrines that are currently under reconsideration by the Federal Circuit. These doctrines include patent claim construction under the 2006 Phillips case, the problem of foreign activity being used as patent-defeating prior art as shown in the recent Elsner case, the growing challenge of extraterritorial acts as patent infringement as presented in the 2004 expected cases of Blackberry and Eolas, the “Rule 105” implications for patent office practice in Sta Fruits, the change in willful infringement law set forth in the recent KnorrBremse case, the continuing problem of co-inventorship recurring in Xechem, the …
“Shamnesty” Vs. Amnesty: Can The Riaa Grant Immunity To File-Sharers From Copyright Infringement Lawsuits?, 3 J. Marshall Rev. Intell. Prop. L. 279 (2004), Natosha Cuyler-Sherman
“Shamnesty” Vs. Amnesty: Can The Riaa Grant Immunity To File-Sharers From Copyright Infringement Lawsuits?, 3 J. Marshall Rev. Intell. Prop. L. 279 (2004), Natosha Cuyler-Sherman
UIC Review of Intellectual Property Law
The Recording Industry Association of America (RIAA) is the industry trade association for sound and music recordings and represents various music companies, songwriters, and music artists. One of the main functions of the RIAA is to enforce its members’ copyrights. The RIAA is currently representing members in copyright infringement lawsuits. As an alternative to being sued, the RIAA announced that it would grant amnesty to file sharers who voluntarily identified themselves and promised to stop illegally sharing music. In reality, non-RIAA members and even RIAA members themselves can still sue file sharers because the organization itself does not have the …
The Accidental And Inherent Anticipation Doctrines: Where Do We Stand And Where Are We Going?, 4 J. Marshall Rev. Intell. Prop. L. 63 (2004), Anne Brown, Mark Polyakov
The Accidental And Inherent Anticipation Doctrines: Where Do We Stand And Where Are We Going?, 4 J. Marshall Rev. Intell. Prop. L. 63 (2004), Anne Brown, Mark Polyakov
UIC Review of Intellectual Property Law
It is often unclear when a prior occurrence or disclosure of a claimed invention falls under the patent law doctrines of inherent or accidental anticipation. Courts have applied various tests in determining whether anticipation is inherent or accidental, and the cases are difficult to reconcile. Tests seemingly dispositive to establish an accident in one case may also appear dispositive to establish inherency. As a result of our analysis, we have developed a two-step test that can be used to reconcile the two doctrines and determine whether a product or process anticipates. The first prong is concerned with whether the prior …
Dividing The (Statutory) Baby Under Anton/Bauer: Using The Doctrine Of Implied License To Circumvent § 271(C) Protection For Components Of A Patented Combination, 3 J. Marshall Rev. Intell. Prop. L. 355 (2004), Daniel M. Lechleiter
UIC Review of Intellectual Property Law
In proscribing contributory infringement of patents, § 271(c) of Title 35 of the United States Code unambiguously provides statutory protection for certain unpatented components of patented combinations and certain unpatented materials or apparatuses used in patented processes. The doctrine of implied license provides a viable defense against claims of contributory infringement. Such a finding may result from a variety of related doctrines, such as the exhaustion doctrine or the doctrine of equitable estoppel. However, unlike the Supreme Court’s application of the former doctrine in Dawson Chemical Co. v. Rohm & Haas Co., involving an unpatentedchemical used in a patented process, …
Trademark Surveys: Development Of Computer-Based Survey Methods, 4 J. Marshall Rev. Intell. Prop. L. 91 (2004), Robert H. Thornburg
Trademark Surveys: Development Of Computer-Based Survey Methods, 4 J. Marshall Rev. Intell. Prop. L. 91 (2004), Robert H. Thornburg
UIC Review of Intellectual Property Law
Courts have continually utilized surveys to show evidence of secondary meaning, genericness, dilution, and functionality in trademark litigation. In conducting a trademark survey, an expert must consider various factors that may affect the admissibility of the survey in court, including assuring the correct universe of respondents are questioned, implementing controls, and verifying the results. In light of these considerations, as well as the ever-changing environment of consumer shopping, the manner and mode of survey that a court accepts as appropriate must adapt to these conditions. The use and acceptance of online and computer-based surveys is not currently well received by …
When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas
When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas
UIC Review of Intellectual Property Law
Reexamination was created to reconfirm the presumed validity of a patent without requiring the patentee to endure the expense of litigation. The Patent Act allows anyone to request reexamination of a patent based on newly discovered prior art. Upon finding that the request raises a substantial new question of patentability, the Director of the United States Patent and Trademark Office may order reexamination. Even if a request is not made, the Director may sua sponte order a reexamination. Such reexaminations are only initiated when questions of public policy arise and there is no interest by any other pson. However, in …
Football's Intellectual Side: The Nfl Versus Super Bowl Parties And The Story Of The Fifty-Five Inch Television, 4 J. Marshall Rev. Intell. Prop. L. 125 (2004), Michael M. Fenwick
Football's Intellectual Side: The Nfl Versus Super Bowl Parties And The Story Of The Fifty-Five Inch Television, 4 J. Marshall Rev. Intell. Prop. L. 125 (2004), Michael M. Fenwick
UIC Review of Intellectual Property Law
The increasing popularity of the National Football League’s Super Bowl Championship has spawned an increasing number of private parties, some that employ projection-screen televisions measuring up to twenty feet diagonally. Only days before the 2004 Super Bowl, the NFL sent cease-and-desist letters to a number of business proprietors claiming display of the broadcast on televisions larger than fifty-five inches diagonally violated the NFL’s rights under 17 U.S.C. § 110(5). This Comment will show that because 17 U.S.C. § 110(5) was written to protect authors within the music industry, its application to broadcast television fails because of television’s fundamentally different business …
Does David Need A New Sling? Small Entities Face A Costly Barrier To Patent Protection, 4 J. Marshall Rev. Intell. Prop. L. 184 (2004), Jeff A. Ronspies
Does David Need A New Sling? Small Entities Face A Costly Barrier To Patent Protection, 4 J. Marshall Rev. Intell. Prop. L. 184 (2004), Jeff A. Ronspies
UIC Review of Intellectual Property Law
The cost of enforcing patent rights is discouraging the small-entity inventor from seeking out patent protection. The United States Patent and Trademark Office favors the “small entity” by reducing fees, but the world of infringement litigation offers no such discount. For the small entity, the costs related to asserting or defending its patent rights against a well-funded adversary often exceed the benefits of patent ownership. These inventors, in weighing the high costs of patent protection against the potential profits, may simply choose to not patent their innovations. Such a decision would deprive the public of the invention’s disclosure and ultimately …
Geo-Location Technologies And Other Means Of Placing Borders On The 'Borderless' Internet, 23 J. Marshall J. Computer & Info. L. 101 (2004), Dan Jerker B. Svantenson
Geo-Location Technologies And Other Means Of Placing Borders On The 'Borderless' Internet, 23 J. Marshall J. Computer & Info. L. 101 (2004), Dan Jerker B. Svantenson
UIC John Marshall Journal of Information Technology & Privacy Law
Until recently it was considered impossible or at least pointless to attempt to identify the actual geographic location of Internet users in the online environment. However, this is changing and, although extremely accurate geographical identifiers do not exist, more geo-location technologies are used to track the location of the Internet users for a variety of reasons such as fraud detection, authentication, content targeting, security and network efficiency, conditioning access and legal compliance. The article distinguishes between hard protection provided by geo-location technologies and soft protection provided by non-technical means. It then proceeds in presenting and examining the geo-location technologies, sophisticated …
Open And Closed: Captioning Technology As A Means To Equality, 23 J. Marshall J. Computer & Info. L. 159 (2004), Faye Kuo
UIC John Marshall Journal of Information Technology & Privacy Law
It is well known that going to the movies is an extremely popular pastime for the Americans. However for millions of Americans who are deaf or hard of hearing this is not something that they can enjoy in the same terms as the rest of the other movie goers since most movie theater operators consider that providing “equal access” to deaf or hard of hearing individuals consists only of allowing them to enter the theater, purchase and ticket and sit down not install captioning technology so that deaf or hard of hearing individuals could actually understand the movie shown. The …
To: Client@Workplace.Com: Privilege At Risk?, 23 J. Marshall J. Computer & Info. L. 75 (2004), Dion Messer
To: Client@Workplace.Com: Privilege At Risk?, 23 J. Marshall J. Computer & Info. L. 75 (2004), Dion Messer
UIC John Marshall Journal of Information Technology & Privacy Law
As more attorneys now days use the e-mail as their primary source of communication with their clients, new issues arise regarding the potential threat to attorney-client communication privilege resulting from the standard and systematic employer monitoring of their employees e-mails. Indeed employers monitor their employees’ computer use and in some cases terminate employees as result of this monitoring, for various reasons such as to increase of employee productivity and efficiency, protect their public image, prevent workplace harassment, protect their Intellectual Property assets and their network capacity. Given the systematic workplace monitoring but also the fact that contrary to the American …
The Truth About The Truth In Domain Names Act: Why This Recently Enacted Law Is Unconstitutional, 23 J. Marshall J. Computer & Info. L. 141 (2004), Michael Honig
UIC John Marshall Journal of Information Technology & Privacy Law
In April 2003 the Prosecutorial Remedies and other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) was enacted with the goal to protect children from abduction and abuse and achieve a more aggressive pursuit of the individuals committing crimes against the children. Although the AMBER Alert system is the most known portion of the legislation other provisions including the Truth in Domain Names Act (TDNA) making the use of a misleading Internet domain name to deceive a person to view pornography a criminal offense were also included. This comment first discusses the case of John …
Lessons For The Hague: Internet Jurisdiction In Contract And Tort Cases In The European Community And The United States, 23 J. Marshall J. Computer & Info. L. 1 (2004), Moritz Keller
UIC John Marshall Journal of Information Technology & Privacy Law
With the increasing use of the Internet, all on-line users, web site owners, e-commerce companies and consumers alike, feel the need to be able to rely on clear standards for a potential contract or tort lawsuit following the Internet presence that could lead to multinational litigation. This goal could be achieved if the negotiations of the Hague Convention on international jurisdiction and enforcement of foreign judgments in civil and commercial matters succeed in harmonizing the rules of the different legal systems around the globe, or at least create a minimum standard for legal cases which would benefit greatly e-commerce and …
Privatizing Information And Information Technology – Whose Life Is It Anyway?, 22 J. Marshall J. Computer & Info. L. 375 (2004), Ellen Dannin
UIC John Marshall Journal of Information Technology & Privacy Law
As the United States government collects personal and private information about each of us, the government must also consider ways of preventing that information from falling into the wrong hands. In the wrong hands, that information can be turned against the individual – from blackmailing to more nefarious acts, such as terrorism. However, the government trend of outsourcing information gathering tasks has dramatically increased the chances of the wrong people receiving sensitive information. The government has been outsourcing information gathering tasks because of their failure to develop sufficient in-house expertise to handle information gathering. A second reason is that some …
Defining Cyberterrorism, 22 J. Marshall J. Computer & Info. L. 397 (2004), Mohammad Iqbal
Defining Cyberterrorism, 22 J. Marshall J. Computer & Info. L. 397 (2004), Mohammad Iqbal
UIC John Marshall Journal of Information Technology & Privacy Law
This article explores the definition of the term “cyberterrorism” in light of available literature and recent legislation in an attempt to distinguish cyberterrorism from other cyber activities and crimes. Cyberterrorism is the convergence of terrorism and cyberspace. The author discusses the differences between true cyberterrorism – that is, actual harm caused by cyber attacks – versus less malignant attacks that do more to annoy than harm. The author points out that the main difference between cyberterrorism and other cyber attacks, such as hacking and cracking, is that cyberterrorists are politically motivated, while other cyber attackers have non-politic motives.
The Fourth Amendment And The Wiretap Act Fail To Protect Against Random Isp Monitoring Of E-Mails For The Purpose Of Assisting Law Enforcement, 22 J. Marshall J. Computer & Info. L. 493 (2004), Jim W. Ko
UIC John Marshall Journal of Information Technology & Privacy Law
This article takes the position that the Wiretap Act and the Electronic Communications Privacy Act (ECPA) does little to provide protection against internet service providers (ISPs) that randomly monitor e-mails for the purpose of turning over evidence of criminal activities to law enforcement officials. The article provides a background to the special privacy issues that arise in the context of computer technology and ISPs. An analysis of the Wiretap Act, as amended by the ECPA, reveals that an implicit statutory prohibition against random surveillance by ISPs for the purpose of assisting law enforcement does in fact exist. Further, remedies for …
The Global Rise Of A Duty To Disclose Information Security Breaches, 22 J. Marshall J. Computer & Info. L. 457 (2004), Ethan Preston, Paul Turner
The Global Rise Of A Duty To Disclose Information Security Breaches, 22 J. Marshall J. Computer & Info. L. 457 (2004), Ethan Preston, Paul Turner
UIC John Marshall Journal of Information Technology & Privacy Law
Section 1798.82 requires computer database operators to disclose security breaches involving personal data information to both the subjects of the data and the owners of the personal data. However, this commentary views Section 1798.82 with apprehension, but takes the position that much broader duties to disclose such breaches are already in place. This article begins with a discussion about legislation that expressly require disclosure of computer security breaches, such as Section 1798.82 and Article 4 of the European Union Telecommunications and Electronic Communications Privacy Directives. Then it follows with a discussion about legislation and common law that implicitly requires disclosure …
Www.Yourname.Com: How Useful Is The Uniform Domain Name Dispute Resolution Policy ("Udrp") In Protecting Personal Names From Cybersquatters?, 22 J. Marshall J. Computer & Info. L. 535 (2004), Georgette H. Tarnow
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Democracy In Decline: Can Internet Voting Save The Electoral Process?, 22 J. Marshall J. Computer & Info. L. 409 (2004), Bryan Mercurio
Democracy In Decline: Can Internet Voting Save The Electoral Process?, 22 J. Marshall J. Computer & Info. L. 409 (2004), Bryan Mercurio
UIC John Marshall Journal of Information Technology & Privacy Law
Voter confidence that votes are accurately cast, counted, and kept are at an all time low. The traditional methods of voting has proven itself time and time again to be untrustworthy and unreliable, as evidenced recently in the 2000 presidential elections. The time is now ripe to thoroughly investigate alternative methods of casting ballots as a way to restore voter confidence in the electoral system. Using the Internet to assist the electoral system has emerged as a potential option in order to remedy many defects within the electoral process. However, Internet voting is untested and less transparent than traditional voting …
Dow Jones And The Defamatory Defendant Down Under: A Comparison Of Australian And American Approaches To Libelous Language In Cyberspace, 22 J. Marshall J. Computer & Info. L. 553 (2004), Richard L. Creech
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
The Destruction Of Media Diversity, Or: How The Fcc Learned To Stop Regulating And Love Corporate Dominated Media, 22 J. Marshall J. Computer & Info. L. 569 (2004), Christa Corrine Mclintock
The Destruction Of Media Diversity, Or: How The Fcc Learned To Stop Regulating And Love Corporate Dominated Media, 22 J. Marshall J. Computer & Info. L. 569 (2004), Christa Corrine Mclintock
UIC John Marshall Journal of Information Technology & Privacy Law
Christa Corrine McLintock’s “The Destruction of Media Diversity, or: How the FCC Learned to Stop Regulating and Love Corporate Dominated Media” investigates the current corporate consolidation climate and the efficacy of alternative media outlets. McLintock examines the history of the Federal Communication Commission (“FCC”) and its current trend toward deregulation. McLintock argues that the Internet has failed to level the playing field between alternative media outlets and mainstream media conglomerates. She concludes that increased regulation is not only the most viable solution to the alternative media’s predicament, but also the means through which to satisfy the FCC’s stated goals, facilitate …