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American Exceptionalism, The French Exception, Intellectual Property Law, And Peer-To-Peer File Sharing On The Internet, 10 J. Marshall Rev. Intell. Prop. L. 95 (2010), Lyombe Eko 2010 John Marshall Law School

American Exceptionalism, The French Exception, Intellectual Property Law, And Peer-To-Peer File Sharing On The Internet, 10 J. Marshall Rev. Intell. Prop. L. 95 (2010), Lyombe Eko

The John Marshall Review of Intellectual Property Law

A fundamental problem confronting policy makers is how to apply intellectual property rules and regulations developed for tangible intellectual property assets in real space to intangible,dematerialized intellectual property in cyberspace. The United States and France are self-described exceptionalist countries. American exceptionalism refers to the historical tendency of the United States to emphasize its unique status as the beacon of liberty, while l’exception française (the French exception) refers to the French ideological posture that emphasizes the specificity and superiority of French culture. American exceptionalism and l’exception française are functionally equivalent theoretical constructs that describe and explain how the ...


Deadly Delay / Postponed Pills, 10 J. Marshall Rev. Intell. Prop. L. 254 (2010), Christopher R. Walker 2010 John Marshall Law School

Deadly Delay / Postponed Pills, 10 J. Marshall Rev. Intell. Prop. L. 254 (2010), Christopher R. Walker

The John Marshall Review of Intellectual Property Law

Since 1984, generic pharmaceuticals have continued to grow, and are an important element in our national struggle to increase affordable health care options in the United States. The Hatch-Waxman Act has played a pivotal role in helping to create a regulatory environment that fosters the development of generic pharmaceuticals, thereby increasing access to lower-cost alternatives to more expensive drugs. An important part of balancing the interests of the generic manufacturers against those of the primary pharmaceutical makers is the thirty-month stay provision of the Hatch-Waxman Act. This comment begins by taking a look at the history of the Hatch-Waxman Act ...


Twitter: New Challenges To Copyright Law In The Internet Age, 10 J. Marshall Rev. Intell. Prop. L. 231 (2010), Rebecca Haas 2010 John Marshall Law School

Twitter: New Challenges To Copyright Law In The Internet Age, 10 J. Marshall Rev. Intell. Prop. L. 231 (2010), Rebecca Haas

The John Marshall Review of Intellectual Property Law

Twitter is part of the new wave of internet communication. It is unique because messages sent via Twitter are limited to 140 characters. Many of these messages are about mundane details of daily life, but some are creative, even literary, and may qualify for copyright protection. The problem,then, is not necessarily whether a Tweet can qualify for copyright protection, but how that protection is enforced. Current infringement policies and procedures are not designed to effectively handle copyright infringement on the internet. Internet infringement is widespread and not easy to monitor or regulate, therefore there is a need for a ...


Consumer-Generated Media And Advertising—Are They One And The Same? An Analysis Of The Amended Ftc Guides Concerning The Use Of Endorsements And Testimonials In Advertising, 10 J. Marshall Rev. Intell. Prop. L. 206 (2010), Jessica Godell 2010 John Marshall Law School

Consumer-Generated Media And Advertising—Are They One And The Same? An Analysis Of The Amended Ftc Guides Concerning The Use Of Endorsements And Testimonials In Advertising, 10 J. Marshall Rev. Intell. Prop. L. 206 (2010), Jessica Godell

The John Marshall Review of Intellectual Property Law

The advertising industry as well as the endorsements and testimonials that support advertising have been expanding into new mediums for years. As a result of this continual growth, the Federal Trade Commission (“FTC”) recently amended the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (“The Guides”). The FTC, which sought to apply The Guides to consumer-generated media for the very first time, had not amended The Guides prior to these revisions in three decades. As a result, the changes garnered a number of mixed reactions from the media, consumers and the advertising and legal industries. Under the ...


Statistical Analysis Of Federal District Court Cases Seeking Longer Patent Term Adjustments In The Wake Of Wyeth V. Kappos, 10 J. Marshall Rev. Intell. Prop. L. 1 (2010), Verne A. Luckow, Steven C. Balsarotti 2010 John Marshall Law School

Statistical Analysis Of Federal District Court Cases Seeking Longer Patent Term Adjustments In The Wake Of Wyeth V. Kappos, 10 J. Marshall Rev. Intell. Prop. L. 1 (2010), Verne A. Luckow, Steven C. Balsarotti

The John Marshall Review of Intellectual Property Law

Over 175 Federal District Court cases filed from September 2008 through July 2010 were analyzed to determine common features noted by applicants seeking longer patent term adjustments (“PTAs”) in view of a Federal District Court ruling, later affirmed by the U.S. Court of Appeals for the Federal Circuit in Wyeth v. Kappos, which held that the United States Patent and Trademark Office (“PTO”) misinterpreted a statute relating to the calculation of PTAs involving overlapping periods of delay attributable to the PTO or to the applicant. Applicant and PTO errors in calculating PTAs were common, often relating to counting errors ...


Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins 2010 John Marshall Law School

Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins

The John Marshall Review of Intellectual Property Law

Historically, quilts have been denied the same copyright protection available to any other expression in a fixed medium. When quilts have been considered protectable, the protectable elements in a pattern have been limited, or the application of the substantial similarity test has varied widely. One possible explanation for this unequal treatment is that quilting is viewed as ‘women’s work.’ Another is that quilts are primarily functional. However, quilts have evolved over time and may now be expensive collectible pieces of art; art that deserves copyright protection. This article traces the history of quilt making, addresses the varying standards of ...


Music Markets And Mythologies, 9 J. Marshall Rev. Intell. Prop. L. 831 (2010), Henry H. Perritt, Jr. 2010 John Marshall Law School

Music Markets And Mythologies, 9 J. Marshall Rev. Intell. Prop. L. 831 (2010), Henry H. Perritt, Jr.

The John Marshall Review of Intellectual Property Law

New technologies have started a revolution in the music marketplace. As new business models emerge, major firms in the popular music industry have mounted a campaign on the premise that the world of popular music faces a grave threat from illicit filing sharing. This article makes the case against that campaign. It discusses how new technologies are currently reshaping the marketplace to allow a wider range of new artists, as well as more direct access between musicians and their fans. It also predicts how future demand for popular music will increase due to portability, and ultimately recommends directions for marketplace ...


Reforming The Uspto To Comply With Mpep § 707.07(J) To Give A Fair Shake To Pro Se Inventor-Applicants, 9 J. Marshall Rev. Intell. Prop. L. 880 (2010), Paul M. Swamidass 2010 John Marshall Law School

Reforming The Uspto To Comply With Mpep § 707.07(J) To Give A Fair Shake To Pro Se Inventor-Applicants, 9 J. Marshall Rev. Intell. Prop. L. 880 (2010), Paul M. Swamidass

The John Marshall Review of Intellectual Property Law

If pro se patent applicants are successful with their applications, they are likely to be inspired to become serial inventors and patentees. In contrast, a pro-se patent applicant, who is turned off by a non- transparent and arbitrary examination process at the United States Patent and Trademark Office (“USPTO”), may curtail his/her instinct to invent and patent. The USPTO does not collect data or publish statistical analyses of pro se patent applications. Therefore, the challenges faced by the pro se inventor- applicants are hidden. The author subjected himself to the PTO’s patent examination process as a pro se ...


The 8% Solution - Or How Good Are The Calculation Economics By The Federal Circuit In Lucent V. Microsoft?, 9 J. Marshall Rev. Intell. Prop. L. 797 (2010), W. Lesser 2010 John Marshall Law School

The 8% Solution - Or How Good Are The Calculation Economics By The Federal Circuit In Lucent V. Microsoft?, 9 J. Marshall Rev. Intell. Prop. L. 797 (2010), W. Lesser

The John Marshall Review of Intellectual Property Law

Lucent v. Microsoft brought to the fore again the complexity of infringement damage estimates. Differences in approaches were laid open in this case with the trial court jury settling $358 million in damages against Microsoft and the appeals court striking down the value as lacking substantial evidence. Damages were established on the “reasonable royalty” basis for a product which was neither licensed nor sold. This article contends that the appeals court took too narrow a view of economics in its analysis of the software sector. Specifically, the court seems to have applied a “perfect competition” model to a sector which ...


The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley 2010 John Marshall Law School

The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley

The John Marshall Review of Intellectual Property Law

Throughout history, criminal organizations have produced, packaged, transported, marketed, and sold illegal products. These organizations and their individual members can be punished for all of the steps in this process, except one: marketing. These groups routinely market their products with trademarks affixed to the illegal products they sell, and benefit from these trademarks the same way a company like the Coca-Cola Company benefits from its trademarks. Criminal organizations should not be free to use trademarks without fear of any additional punishment for doing so. Congress and the United States Sentencing Commission should look at this issue to determine an appropriate ...


Consumer Protection In The Eco-Mark Era: A Preliminary Survey And Assessment Of Anti-Greenwashing Activity And Eco-Mark Enforcement, 9 J. Marshall Rev. Intell. Prop. L. 742 (2010), Eric L. Lane 2010 John Marshall Law School

Consumer Protection In The Eco-Mark Era: A Preliminary Survey And Assessment Of Anti-Greenwashing Activity And Eco-Mark Enforcement, 9 J. Marshall Rev. Intell. Prop. L. 742 (2010), Eric L. Lane

The John Marshall Review of Intellectual Property Law

We stand at the dawn of the Eco-mark Era—a period in which green branding, advertising environmentally friendly products and services, and touting sustainable business practices will be pervasive and profitable. However, with the rise of green branding comes the temptation of greenwashing—making false or misleading claims regarding environmentally friendly products, services or practices. Instances of greenwashing appear to be on the rise, but we are seeing more activity to combat greenwashing by public enforcement and consumer class actions. In addition, green brand owners are protecting and enforcing their eco-marks, and trademark litigation involving green brands is becoming commonplace ...


The Eminence Of Imminence And The Myopia Of Markets, 9 J. Marshall Rev. Intell. Prop. L. 674 (2010), Teneille R. Brown 2010 John Marshall Law School

The Eminence Of Imminence And The Myopia Of Markets, 9 J. Marshall Rev. Intell. Prop. L. 674 (2010), Teneille R. Brown

The John Marshall Review of Intellectual Property Law

This article questions the privileging of disaster, or imminent threat, over more distant threats to public health. In many cases, this privileging makes sense as we do not have time to evaluate the threat under traditional frameworks. But in some cases, we privilege disaster in ways that may be ethically and legally unsound. Here, I am interested in a particular type of public health threat—the negative consequences that stem from climate change. In this article, I view the climate change discussion through the lens of distributive justice. I analyze the ethical as well as legal arguments in support of ...


What Does It Mean To Be Green: A Short Analysis Of Emerging Ip Issues In "Green" Marketing, 9 J. Marshall Rev. Intell. Prop. L. 774 (2010), Maureen Beacom Gorman 2010 John Marshall Law School

What Does It Mean To Be Green: A Short Analysis Of Emerging Ip Issues In "Green" Marketing, 9 J. Marshall Rev. Intell. Prop. L. 774 (2010), Maureen Beacom Gorman

The John Marshall Review of Intellectual Property Law

Green products are red hot, but defining what “green” means is difficult. Consumers are faced with an array of labels denoting products as “green,” making it difficult to determine which are truly “green” and which are “green-washed.” The Trademark Trial and Appeal Board recently determined that the term “green” is generic, meaning anything “environmentally friendly.” The FTC has been criticized for causing consumer confusion over its failure to enforce its “Green Guides” governing environmental product claims and certifications. These “Green Guides,” which do not define “green,” were first promulgated by the FTC in 1992, but have not been updated since ...


Gene Patenting Debate: The Meaning Of Myriad, 9 J. Marshall Rev. Intell. Prop. L. 953 (2010), Miri Yoon 2010 John Marshall Law School

Gene Patenting Debate: The Meaning Of Myriad, 9 J. Marshall Rev. Intell. Prop. L. 953 (2010), Miri Yoon

The John Marshall Review of Intellectual Property Law

The United States District Court for the Southern District of New York recently held in Association for Molecular Pathology v. United States Patent & Trademark Office that Myriad’s patent claims directed to isolated DNA molecules encoding human breast cancer susceptibility genes BRCA1/2 are not patent-eligible subject matter. Even though the court construed that the patent claims are directed to tangible chemical compounds, the overriding importance of unclaimed DNA sequence information renders claimed molecules as unpatentable products of nature. While the immediate impact of this decision is limited to Myriad’s patents-in-suit, this decision reflects the concern about the adverse ...


No More Rockin' In The Free World: Removing The Radio Broadcast Exemption, 9 J. Marshall Rev. Intell. Prop. L. 935 (2010), Brandon H. Nemec 2010 John Marshall Law School

No More Rockin' In The Free World: Removing The Radio Broadcast Exemption, 9 J. Marshall Rev. Intell. Prop. L. 935 (2010), Brandon H. Nemec

The John Marshall Review of Intellectual Property Law

In an era of boundless technological advancement, the music industry faces its most turbulent economic landscape to date. The sustainability of the industry relies on the emergence of an innovative strategy to adapt music’s business model and continue to incentivize the creation and performance of brilliant music. A modernized industry model necessitates a reorganization of the copyright protections ultimately designed to motivate exceptional musicians. The following comment proposes a shift in one of music’s traditional revenue streams, and examines the controversial public performance exemption provided to broadcast radio. While debate has circulated around the public performance exemption for ...


Patent Law, Hippo, And The Biodiversity Crisis, 9 J. Marshall Rev. Intell. Prop. L. 624 (2010), Andrew W. Torrance 2010 John Marshall Law School

Patent Law, Hippo, And The Biodiversity Crisis, 9 J. Marshall Rev. Intell. Prop. L. 624 (2010), Andrew W. Torrance

The John Marshall Review of Intellectual Property Law

Planet earth is host to a dazzling variety of living organisms. This diversity of life, or “biodiversity,” is vital to the survival and prosperity of humanity, supplying such vital amenities as food, clothing, shelter, natural biochemicals useful in medicine, industry, and agriculture, and even irreplaceable ecosystem services, such as clean air and water. Despite the prodigious amount of biodiversity on earth, human activities have been depleting it at an accelerating rate that has now reached the level of a mass extinction event. The five greatest threats to biodiversity can be summarized by the “HIPPO” acronym: (1) Habitat loss, (2) Invasives ...


Not Only Innovation But Also Collaboration, Funding, Goodwill And Commitment: Which Role For Patent Laws In Post-Copenhagen Climate Change Action, 9 J. Marshall Rev. Intell. Prop. L. 657 (2010), Estelle Derclaye 2010 John Marshall Law School

Not Only Innovation But Also Collaboration, Funding, Goodwill And Commitment: Which Role For Patent Laws In Post-Copenhagen Climate Change Action, 9 J. Marshall Rev. Intell. Prop. L. 657 (2010), Estelle Derclaye

The John Marshall Review of Intellectual Property Law

Patent laws can do their bit to help reduce our greenhouse gas emissions. In 2009, accelerated grant procedures and reduction of fees have been put in place by among others the UK and US patent offices. Private initiatives such as the eco-patent commons to licence technology free of charge have been taken. But greening patent law is only a small part of the solution. However well-intentioned all these initiatives are, for several reasons, they may not be sufficient or even at all used. More than intellectual property-related solutions, what will be needed is non- intellectual property-related solutions such as using ...


Increasing Access To Startup Financing Through Intellectual Property Securitization, 27 J. Marshall J. Computer & Info. L. 613 (2010), Kyle Tondo-Kramer 2010 John Marshall Law School

Increasing Access To Startup Financing Through Intellectual Property Securitization, 27 J. Marshall J. Computer & Info. L. 613 (2010), Kyle Tondo-Kramer

The John Marshall Journal of Information Technology & Privacy Law

This paper will discuss how a private company running a single, nationwide database for filing financing agreements can ease the burden on creditors and pave the way for more creditors to enter this market. Part two offers a brief overview of how intellectual property securitization works and some of the impediments to using this type of securitization. Part three proposes a possible solution to the problem creditors face regarding the filing of a financing statement when attempting to securitize intellectual property, and provides an in depth analysis as to why the suggestion that a private company runs a single, nationwide ...


300 Years Of Copyright Law? A Not So Modest Proposal For Reform, 28 J. Marshall J. Computer & Info. L. 1 (2010), James GH Griffin 2010 John Marshall Law School

300 Years Of Copyright Law? A Not So Modest Proposal For Reform, 28 J. Marshall J. Computer & Info. L. 1 (2010), James Gh Griffin

The John Marshall Journal of Information Technology & Privacy Law

2010 sees the three hundredth anniversary of the U.K.'s Statute of Anne 1710. This paper suggests that with the increased ability of content recipients to re-use works, there is a need to readdress the concerns of stakeholders, namely authors, publishers and content recipients. The paper sets out in detail how this should be achieved. To do so, it utilises the notion of creativity as the benchmark by which to balance the interests of stakeholders. This has been used in early eighteenth century case law in the U.K., and there are also other historical and theoretical justifications. The ...


The Cathedral And The Bizarre: An Examination Of The "Viral" Aspects Of The Gpl, 27 J. Marshall J. Computer & Info. L. 349 (2010), Michael F. Morgan 2010 John Marshall Law School

The Cathedral And The Bizarre: An Examination Of The "Viral" Aspects Of The Gpl, 27 J. Marshall J. Computer & Info. L. 349 (2010), Michael F. Morgan

The John Marshall Journal of Information Technology & Privacy Law

While there is a growing body of literature dealing with the General Public License (“GPL”), the potential viral effects of the GPL do not appear to have been analyzed in a detailed technical manner. This paper will attempt to demonstrate that a proper legal analysis of the viral effects of the GPL is dependent on a detailed technical understanding of the specific mechanisms used for each type of program-to-program interaction. Once these technical mechanisms are properly understood it will then be possible to identify the applicable copyright law needed to assess the viral effects of the GPL.


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