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Intellectual Property Law Commons

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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 ...


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.


Safeguarding "The Precious": Counsel On Law Journal Publication Agreements In Digital Times, 28 J. Marshall J. Computer & Info. L. 217 (2010), Michael N. Widener 2010 John Marshall Law School

Safeguarding "The Precious": Counsel On Law Journal Publication Agreements In Digital Times, 28 J. Marshall J. Computer & Info. L. 217 (2010), Michael N. Widener

The John Marshall Journal of Information Technology & Privacy Law

Heaping scholarship fills the academic print and online press about where legal scholars should publish and how to have one’s paper accepted for publication. But there is scarce writing about the contractual relationship between the law journal and the author of an accepted paper. This may be due in part to broadly misconstrued or ignored publication agrees, or perhaps that the business relationship is unworthy of scholarly attention. Regardless, this paper introduces a pragmatist’s perspective on evaluating and revising publication agreements, and informs student editors how publication agreements accomplish a journal’s objectives, based on current copyright law ...


Optimal Fines For False Patent Marking, Thomas F. Cotter 2010 University of Minnesota Law School

Optimal Fines For False Patent Marking, Thomas F. Cotter

Michigan Telecommunications and Technology Law Review

This Essay proposes that, in order to avoid imposing arbitrary (and perhaps unnecessarily large) fines for false patent marking, courts should seek guidance in the law of remedies for false advertising and copyright infringement. In particular, courts should attempt to approximate the social harm caused by actionable false marking by taking into account (1) the plaintiff's loss (if any) and the defendant's gain (if any) attributable to the false marking at issue; (2) the plausibility of substantial but less easily quantifiable harms to consumers and to nonparty competitors; and (3) the risks, on the one hand, of underdeterring ...


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 ...


The Ip Law Book Review, Vol. 1 #1, June 2010, William T. Gallagher, Chester Chuang 2010 Golden Gate University School of Law

The Ip Law Book Review, Vol. 1 #1, June 2010, William T. Gallagher, Chester Chuang

Intellectual Property Law

No abstract provided.


An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch 2010 University of Missouri School of Law

An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch

Faculty Publications

An en banc Federal Circuit is now considering whether Section 112 of the Patent Act as properly interpreted includes a written description requirement that is separate and distinct from the enablement requirement. Although the USPTO has no direct role in the infringement dispute, the government submitted an amicus curie brief arguing that a separate written description requirement is “necessary to permit the USPTO to perform its basic examination function.” However, when pressed during oral arguments the government could not point to any direct evidence supporting its contention.

This essay presents the results of a retrospective empirical study of the role ...


Unofficial Legislative History Of The Biologics Price Competition And Innovation Act 2009, An, Erika Lietzan, Krista Hessler Carver, Jeffrey Elikan 2010 University of Missouri School of Law

Unofficial Legislative History Of The Biologics Price Competition And Innovation Act 2009, An, Erika Lietzan, Krista Hessler Carver, Jeffrey Elikan

Faculty Publications

On March 23, 2010, President Obama signed into law the Biologics Price Competition and Innovation Act of 2009 (BPCIA) which created a regulatory pathway for, and scheme for litigation of patent issues relating to, “biosimilar” biological products. This article discusses the history of the BPCIA and explains its provisions. Section I provides background and a history of the regulation of drugs and biological products in the United States. Section II describes the growing interest in biosimilar approval from the early 2000s through September 2006, when the legislative debate began in earnest. Section III describes the legislative and stakeholder process from ...


Book Review: Reviewing Part Iii Of Innovation For The 21st Century: Harnessing The Power Of Intellectual Property And Antitrust Law, Dennis D. Crouch 2010 University of Missouri School of Law

Book Review: Reviewing Part Iii Of Innovation For The 21st Century: Harnessing The Power Of Intellectual Property And Antitrust Law, Dennis D. Crouch

Faculty Publications

I have very much enjoyed reading Professor Michael Carrier's important new book on the intersection of law and innovation, and greatly appreciate his contributions to the field. In this short essay, I will focus my discussion on my sole area of expertise—patent law. Carrier takes-on the subject of patents in Part III of his book. I agree with most of what Carrier writes. To make this essay more interesting, I focus on some of our areas of apparent disagreement.


Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur 2010 IIT Chicago-Kent College of Law

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

All Faculty Scholarship

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does - must ...


Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco 2010 IIT Chicago-Kent College of Law

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against ...


Technological Fair Use, Edward Lee 2010 IIT Chicago-Kent College of Law

Technological Fair Use, Edward Lee

All Faculty Scholarship

The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside ...


Complex Economics And Patent Remedies, John M. Golden 2010 The University of Texas School of Law

Complex Economics And Patent Remedies, John M. Golden

IP Theory

No abstract provided.


Life In The Fast Lane: Of Presumptions, Defenses, And Burdens, William McGeveran 2010 University of Minnesota - Twin Cities

Life In The Fast Lane: Of Presumptions, Defenses, And Burdens, William Mcgeveran

IP Theory

No abstract provided.


Markets For Patent Scope, Ted M. Sichelman 2010 University of San Diego School of Law

Markets For Patent Scope, Ted M. Sichelman

IP Theory

A recurring issue in intellectual property theory is how the scope of patent rights affects invention and commercialization. Traditionally, there has been a dichotomous debate: one view stemming from Ed Kitch, promoting broad “prospect”-style patents in the hands of a single inventor, and another view from Robert Merges and Richard Nelson, advocating relatively narrow scope to encourage competition in innovation. More recently, a variety of scholars have set forth more nuanced positions. My thesis here is that the variance in these views can be traced to differing empirical attitudes about how well the market functions relative to a patent ...


Patent Claiming In The United States: Central, Peripheral, Or Mongrel?, Martin J. Adelman 2010 George Washington University

Patent Claiming In The United States: Central, Peripheral, Or Mongrel?, Martin J. Adelman

IP Theory

No abstract provided.


The Role Of Patent Eligibility In Policing Claim Scope, Christopher M. Holman 2010 University of Missouri-Kansas City

The Role Of Patent Eligibility In Policing Claim Scope, Christopher M. Holman

IP Theory

No abstract provided.


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