Intellectual Property Law Commons^™

Living With Monsanto, 2015 Mich. St. L. Rev. 559 (2015), Daryl Lim

UIC Law Open Access Faculty Scholarship

Bowman v. Monsanto Co. signaled the end of an era of seed saving. Farmers must buy new seed for replanting or risk patent infringement. The familiar rhetoric of oppressed farmers belies the fact that Monsanto’s success rests in part on farmers prizing its innovations. Current trends indicate that this reliance on Monsanto will continue. The Supreme Court correctly found for Monsanto. However, future cases must iron out the kinks in the Bowman decision. Despite the Court’s best intentions, inadvertence cannot shield farmers from patent infringement. The Court must also make it clear that patentees cannot use licensing restrictions to claw …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. The comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye.

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the Twenty-First Volume. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. From the Journal’s inception in 1995, JOLT has strived to be a step ahead of these laws in an effort to help shape the emerging legal landscape. Additionally, JOLT recognizes the practical benefit that many of its articles have on legal professionals and we publish articles with this goal in mind. The following articles …

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Richmond Journal of Law & Technology

The next great wave of Internet-enabled innovation has arrived, and it is poised to revolutionize the way humans interact with the world around them. This paper highlights some of the opportunities presented by the rise of the so-called Internet of Things (IoT) in general and wearable technology in particular and encourages policymakers to allow these technologies to develop in a relatively unabated fashion.

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its fourth and final issue of the Twenty-First Volume. At its inception in 1995 JOLT became the first law review to be published exclusively online. From this moment on, the Journal has continued to set trends in the legal scholarship world. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. The articles in this fourth issue are no exception. Each of the following articles present exciting discussions on cutting-edge areas of …

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

Ongoing Royalties In Patent Cases After Ebay: An Empirical Assessment And Proposed Framework, Christopher B. Seaman

Scholarly Articles

While the Federal Circuit has authorized the award of ongoing royalties as an equitable alternative to a permanent injunction, numerous questions regarding such relief remain unresolved, including when ongoing royalties should be awarded, the structure and methodology for computing an award, and possible enhancement of the royalty rate for post-judgment willful infringement. Despite lower courts' attempts to grapple with these issues, a comprehensive methodology for determining ongoing royalties has yet to emerge.

This Article seeks to fill this void in two ways. First, it empirically assesses how courts have resolved claims for ongoing royalties by prevailing patentees. It does so …

Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

The amici curiae are law professors who teach and write on civil procedure and/or patent law and policy. As such, amici are interested in the effective functioning of the courts and the patent system in general. Amici believe that this Court’s rigid rule restricting personal jurisdiction in patent declaratory judgment actions both flouts Supreme Court precedent and frustrates the public policy of clearing invalid patents. Although amici hold different views on other aspects of modern patent law and policy, they are united in their professional opinion that this Court should overturn its inflexible jurisdictional rule.

Brief Amicus Curiae Of Intellectual Property Professors In Support Of Neither Party: Halo Elecs. Inc. V. Pulse Elecs. Inc. And Stryker Corp. V. Zimmer, Inc., Christopher B. Seaman, Jason Rantanen

Scholarly Articles

This amicus brief was filed on behalf of several intellectual property law professors in Halo v. Pulse and Stryker v. Zimmer regarding the appropriate standard for enhancing (increasing) damages under section 284 of the Patent Act, 35 U.S.C. § 284. It advances three primary arguments. First, it asserts that in light of the history of the statutory text and judicial precedent, willful infringement is the appropriate standard (and thus the only valid basis) for awarding enhanced damages under § 284. Second, it contends that Federal Circuit’s two-part, objective/subjective test for determining willfulness articulated in In re Seagate Technology, LLC, …

The Local Rules Of Patent Procedure, Megan M. La Belle

Scholarly Articles

Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it …

2014 Patent Law Decisions On Key Issues At The Federal Circuit, Olivia T. Luk, Palash Basu, Ryan Dooley, Charles Green, Brian E. Haan

American University Law Review

No abstract provided.

Global Data Meets 3-D Printing: The Quest For A Balanced And Globally Collaborative Solution To Prevent Patent Infringement In The Foreseeable 3-D Printing Revolution, Tyler Macik

Indiana Journal of Global Legal Studies

This Note explores a potential global solution to the foreseeable patent infringement problems with 3-D printing and do-it-yourself users. More specifically, at a time when 3-D printing is quickly gaining popularity and recognition for its many beneficial applications through advancements in printing and scanning technology, the current state of patent law lacks the ability to detect and prevent patent infringement among do-it-yourself users of 3-D printing. I propose a potential global solution that would provide a balance between fostering growth in 3-D printing and upholding patentees' rights by exploring the possibility of creating a collaborative, intergovernmental 3-D CAD file database …

When Nominal Is Reasonable: Damages For The Unpracticed Patent, Oskar Liivak

Cornell Law Faculty Publications

To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, …

Fair Users Or Content Abusers? The Automatic Flagging Of Non-Infringing Videos By Content Id On Youtube, Leron Solomon

Hofstra Law Review

The article discusses America's fair use copyright doctrine and the nation's Digital Millennium Copyright Act (DMCA) in relation to the problems that are associated with the use of the Content ID automated digital fingerprinting system to regulateuser-generated Internet content on video-sharing services such as YouTube. The legal liability of Internet service providers for copyright infringement by website users is examined, along with the flagging of non-infringing videos.

Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Publications & Other Works

ABSTRACT: This detailed empirical and doctrinal study of copyright trolling presents new data showing the astonishing rate of growth of multi-defendant John Doe litigation in United States district courts over the past decade. It also presents new evidence of the association between this form of litigation and allegations of infringement concerning pornographic films. Multi-defendant

John Doe lawsuits have become the most common form of copyright litigation in several U.S. districts, and in districts such as the Northern District of Illinois, copyright litigation involving pornography accounts for more than half of new cases.

This Article highlights a fundamental oversight in the …

Sovereignty Under Siege: Corporate Challenges To Domestic Intellectual Property Decisions, Cynthia M. Ho

Faculty Publications & Other Works

Countries face a new threat that strikes at their ability to balance protection of intellectual property rights against other priorities, such as public health. They may have to pay substantial compensation to companies that dislike domestic intellectual property laws. This threat is much more significant than the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), a landmark international agreement concluded twenty years ago, that for the first time required all countries to provide "minimum" levels of intellectual property rights; before that time, countries were not obligated to provide any such rights at all. Since the conclusion of TRIPS, policymakers …

Intellectual Property And Gender: Reflections On Accomplishments And Methodology, Kara W. Swanson

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Here Come The Trade Secret Trolls, David S. Levine, Sharon Sandeen

Faculty Scholarship

Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior — using litigation as a means to extract settlement payments from unsuspecting defendants — to …