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A Good Day To Be A Bad Spaniel: Broadening The Application Of The Rogers Test, 21 Uic Rev. Intell. Prop. L. 193 (2022), Mikhaila Duvall
A Good Day To Be A Bad Spaniel: Broadening The Application Of The Rogers Test, 21 Uic Rev. Intell. Prop. L. 193 (2022), Mikhaila Duvall
UIC Review of Intellectual Property Law
No abstract provided.
Making The List: What Does It Take To Make A Patient List A Trade Secret?, 18 J. Marshall Rev. Intell. Prop. L. 83 (2018), Sara Ghantous
Making The List: What Does It Take To Make A Patient List A Trade Secret?, 18 J. Marshall Rev. Intell. Prop. L. 83 (2018), Sara Ghantous
UIC Review of Intellectual Property Law
What exactly makes a patient list a trade secret? This question has been a topic of heated debate for the last thirty years. It turns out that there is no right answer to this question. Long story short: it depends. The enumerated factors in the Uniform Trade Secrets Act (UTSA) lack specificity, and the courts fan to clarify how to meet the UTSA’s ambiguous standards. Because there is no clear approach to determine whether a patient list enjoys trade secret protection, there is no way for physicians to know the proper measures to take in gathering, maintaining, and protecting patient …
Delaying Competition: How Sound Public Policy And Rigorous Antitrust Scrutiny Can Be Applied To Controversial Patent Settlements, 17 J. Marshall Rev. Intell. Prop. L. 655 (2018), Sam Hensel
UIC Review of Intellectual Property Law
The rising costs of prescription drugs are a growing concern for many Americans. The restraint of trade for pharmaceutical drugs is a cause of rising costs for consumers, as companies seek to push potential competitors out of the market to maintain profits. This unlawful restraint of trade will be discussed in this comment. Specifically, this comment will focus on "Pay for Delay" agreements, mostly between generic versus brand name pharmaceutical manufacturers. The proliferation of these agreements only leads to an unsustainable market that discourages innovation and advancement, and promotes fraud, as invalid patents are used as leverage to prevent generics …
Apis And Copyright Protection: The Potential Impact On Software Compatibility In The Programming Industry, 16 J. Marshall Rev. Intell. Prop. L. 153 (2016), Daria Vasilescu-Palermo
Apis And Copyright Protection: The Potential Impact On Software Compatibility In The Programming Industry, 16 J. Marshall Rev. Intell. Prop. L. 153 (2016), Daria Vasilescu-Palermo
UIC Review of Intellectual Property Law
In Oracle v. Google, the Federal Circuit set precedent when it decided to grant copyright protection to APIs. This comment examines the potential impact the computer programming industry will face now that APIs are deemed copyrightable. This comment also discusses Google s success in using fair use as an affirmative defense in order to use copyrightable APIs and what that means for the rest of the computer programming industry. Due to the fast-paced and ever-changing world of technology, this comment also proposes that the abstract-filtration-comparison test is the appropriate test to be used in determining API copyrightability if the issue …
Blurring The Line: An Examination Of Technological Fact-Finding In Music Copyright Law, 16 J. Marshall Rev. Intell. Prop. L. 115 (2016), Jeremy Aregood
Blurring The Line: An Examination Of Technological Fact-Finding In Music Copyright Law, 16 J. Marshall Rev. Intell. Prop. L. 115 (2016), Jeremy Aregood
UIC Review of Intellectual Property Law
The result of Williams v. Bridgeport Music, Inc. highlights a major issue in musical plagiarism factfinding. Different circuits employ different tests for fact-finding, however all the tests involve some form of objective criteria that is guided by expert witnesses who perform musical analyses. Because expert witnesses influence their analysis with their own subjective interpretations of the music, and because juries are not fully aware of the distinction between objective and subjective analysis, juries have a distinct possibility of returning a verdict that contradicts the evidence and public policy. New advancements in technology and computation may assist courts in evaluating the …
How The Internet Has Removed The Historical Rationale For "Non-Analogous Arts", 13 J. Marshall Rev. Intell. Prop. L. 68 (2013), Hal Milton
UIC Review of Intellectual Property Law
The growth of the Internet has affected countless aspects of daily life, including the patent system. Internet-based legal research has grown considerably, given the convenience of general search agents such as Google, legally-focused search agents such as Westlaw and Lexis, and patent-focused search agents such as the PAIR system of the United States Patent and Trademark Office. These legal research tools have not only made it easier to find prior art, they have also expanded the volume of information that is available to one of ordinary skill in the art. Consequently, the traditional rules of so-called “analogous arts” are changing. …
A Context-Sensitive Inquiry: The Interpretation Of Meaning In Cases Of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013), Elizabeth Winkowski
A Context-Sensitive Inquiry: The Interpretation Of Meaning In Cases Of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013), Elizabeth Winkowski
UIC Review of Intellectual Property Law
As Andy Warhol’s famous depiction of a soup can has demonstrated, the meaning of a work depends on its context. While the Campbell’s label signified one thing to shoppers in supermarkets, it raised new questions when presented as a work of art. Warhol’s work is just one example of what has come to be known as appropriation art, an artistic practice that borrows and repurposes images from the media, popular culture, and other sources. Unsurprisingly, this art form is in frequent tension with copyright law. This comment suggests that in analyzing the“purpose and character” factor of the fair use inquiry, …
Fifteen Years Of Fame: The Declining Relevance Of Domain Names In The Enduring Conflict Between Trademark And Free Speech Rights, 11 J. Marshall Rev. Intell. Prop. L. 1 (2011), Jude A. Thomas
UIC Review of Intellectual Property Law
Domain name disputes have been the subject of substantial litigation, legislative action, and scholarly debate over the course of the past fifteen years. Much of the debate is the product of disagreement concerning whether trademark rights naturally extend into the domain name space and to what extent those rights are limited by principles of free speech. Gripe sites are paradigmatic examples of this debate. Society’s investment in defining these rights continues to grow, even as the relevance of domain names may be declining, due to: (1) changes in the way users locate content on the Internet; (2) the growth of …
The New Ontologies: The Effect Of Copyright Protection On Public Scientific Data Sharing Using Semantic Web Ontologies, 10 J. Marshall Rev. Intell. Prop. L. 181 (2010), Andrew Clearwater
The New Ontologies: The Effect Of Copyright Protection On Public Scientific Data Sharing Using Semantic Web Ontologies, 10 J. Marshall Rev. Intell. Prop. L. 181 (2010), Andrew Clearwater
UIC Review of Intellectual Property Law
The semantic web is going to become an important tool for scientists who need to accurately share data given context through structured relationships. The structure that defines contextual relationships on the semantic web is known as an ontology; which is a hierarchical organization of a knowledge domain that contains entities and their relations. This paper seeks to answer whether semantic web ontologies are protectable by copyright, and regardless of the outcome, what the best practices are for the scientific community. The best practices for the scientific community should include the adoption of a machine readable ontology license which disclaims copyright …
“Pay-For-Delay” Settlements In Pharmaceutical Litigation: Drawing A Fine Line Between Patent Zone And Antitrust Zone, 9 J. Marshall Rev. Intell. Prop. L. 528 (2009), Yuki Onoe
UIC Review of Intellectual Property Law
Congress has identified the recent trend of pharmaceutical companies to settle patent litigation under “pay-for-delay” settlements or reverse payment settlements. Under these agreements, a generic maker receives a payment from a brand-name company in exchange for withdrawing the patent challenge and refraining from entering the market until an agreed date. Most courts have rejected antitrust challenges to this practice in view of exclusive rights of patent holders and general benefits from settlements. As part of the health care reform, Congress now proposes to treat “pay-for-delay” settlements as per se illegal and entirely ban the practice. The proposal, however, limits the …
Fender Bender: 3d Computer Modeling Of Commercial Objects And The Meshwerks V. Toyota Decision, 8 J. Marshall Rev. Intell. Prop. L. 429 (2009), Andrew C. Landsman
Fender Bender: 3d Computer Modeling Of Commercial Objects And The Meshwerks V. Toyota Decision, 8 J. Marshall Rev. Intell. Prop. L. 429 (2009), Andrew C. Landsman
UIC Review of Intellectual Property Law
The Ninth Circuit Court of Appeals established a standard of originality for three-dimensional wireframe computer models for purposes of copyright protection in Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. The court applied the standard of originality used by courts when assessing the originality of photographs. In doing so, the court created a test for wireframes that precludes any wireframe from acquiring copyright protection. This comment proposes that courts reconsider the holding in Meshwerks and treat wireframes as sculptures rather than photographs, which would allow wireframes to be copyrightable.
The Controversy Surrounding Continuing Applications And Requests For Continued Examination, 7 J. Marshall Rev. Intell. Prop. L. 545 (2008), Scott D. Barnett
The Controversy Surrounding Continuing Applications And Requests For Continued Examination, 7 J. Marshall Rev. Intell. Prop. L. 545 (2008), Scott D. Barnett
UIC Review of Intellectual Property Law
On August 21, 2007, the USPTO published new rules altering the manner in which continuing applications and requests for continued examination could be filed. These new rules represented a drastic departure from traditional practice, and consequently, generated a considerable reaction from the patent community. While some members of the patent community supported the new rules, many others felt that the rules would be insufficient in promoting the USPTO’s goals, and served mainly as an unnecessary roadblock to good-faith patent prosecution. Prior to the rules going into effect, they were challenged in the case Tafas v. Dudas. In Tafas, the district …
Honoring Trademarks: The Battle To Preserve Native American Imagery In The National Collegiate Athletic Association, 7 J. Marshall Rev. Intell. Prop. L. 735 (2008), Ian Botnick
UIC Review of Intellectual Property Law
On August 5, 2005, the National Collegiate Athletic Association introduced its plan to end the use of Native American mascots, nicknames and imagery. Schools were required to change their offensive nicknames and mascots and were forced to stop using trademarks bearing Native American imagery. The NCAA ban presents the question of whether schools affected by the ban can bring a trademark action against the NCAA. One interpretation of trademark law provides a school with no redress because the NCAA has not created a competing mark. However, the other interpretation of trademark law provides a school with a valid trademark claim …
Issues Facing Legal Practitioners In Measuring Substantiality Of Contemporary Musical Expression, 6 J. Marshall Rev. Intell. Prop. L. 489 (2007), Alan Korn
UIC Review of Intellectual Property Law
Modern composers of jazz, avant-garde, hip-hop and world music increasingly rely upon unconventional sounds and advances in recording technology to create new and innovative musical works. As one might expect, courts now face the difficult challenge of applying traditional copyright analysis to these contemporary works to determine whether they embody protectable expression. This article highlights some of the issues specific to innovative musical works and the split among the U.S. Circuit Courts in how to measure the substantiality of these works. Copyright practitioners and composers alike should be aware of these challenges in evaluating the extent of copyright protection for …
Suppression Of Innovation Or Collaborative Efficiencies?: An Antitrust Analysis Of A Research & Development Collaboration That Led To The Shelving Of A Promising Drug, 5 J. Marshall Rev. Intell. Prop. L. 348 (2006), Saami Zain
UIC Review of Intellectual Property Law
This article discusses antitrust issues present in research and development collaborations between competitors. In particular, it illustrates that, although often very beneficial, these collaborations may have the potential for considerable harm via suppression of innovation. The article examines a recent case involving a collaboration to develop drugs, which arguably resulted in the suppression of a promising drug.
Fifth Avenue And The Patent Lawyer: Strategies For Using Design Patents To Increase The Value Of Fashion And Luxury Goods Companies, 5 J. Marshall Rev. Intell. Prop. L. 40 (2005), Scott D. Locke
UIC Review of Intellectual Property Law
Design patents occupy a peculiar niche in intellectual property law. For instance, they are different from copyrights in that an accused infringer has no defense of independent creation, different from utility patents in that there is no prerequisite of a useful function, and different from trade dress in that there is no issue of secondary meaning. Design patents also contain only one claim, which makes the applicant’s drafting task particularly challenging—she must strike a delicate balance between claiming broad protection and establishing novelty. Furthermore, in litigation, the design patent plaintiff must satisfy two tests of infringement: the ordinary observer and …
The Next Wave: Federal Regulatory, Intellectual Property, And Tort Liability Considerations For Medical Device Software, 2 J. Marshall Rev. Intell. Prop. L. 259 (2003), Paul A. Mathew
UIC Review of Intellectual Property Law
Counsel for the medical software technologist faces an unusually complex, ongoing, high-stakes challenge. Counsel operates in a special field of commercial, legal and regulatory forces: (1) intellectual property laws which govern the expression and protection of commercial rights derived from advances in medical science and technology; (2) existing and proposed contracts/warranty laws that govern technological commercial relationships; (3) negligence, professional liability, and product liability laws that govern the marketing of medical technologies; and, (4) a new body of regulation derived from the power of the federal government to indirectly provide for the safety, effectiveness, privacy, and security of medical technologies …
Trade Dress Protection And The Problem Of Distinctiveness, 1 J. Marshall Rev. Intell. Prop. L. 225 (2002), Mark V.B. Partridge
Trade Dress Protection And The Problem Of Distinctiveness, 1 J. Marshall Rev. Intell. Prop. L. 225 (2002), Mark V.B. Partridge
UIC Review of Intellectual Property Law
The problem of trade dress protection is this: What rules should we apply to trade dress protection to best satisfy the goals of trademark law? The merit of various proposed solutions can be measured by evaluating how effective they are in achieving those goals in various disputes. Both distinctiveness and likelihood of confusion should be understood from the perspective of the relevant public, not from that of the court, the trademark owner or the infringer. The questions we seek to answer only have coherent meaning if we consider the perception of the public. Otherwise, we are unable to determine if …
When A Patent Claim Is Broader Than The Disclosure: The Federal Circuit's Game Has No Rules, 1 J. Marshall Rev. Intell. Prop. L. 21 (2001), Robert L. Harmon
When A Patent Claim Is Broader Than The Disclosure: The Federal Circuit's Game Has No Rules, 1 J. Marshall Rev. Intell. Prop. L. 21 (2001), Robert L. Harmon
UIC Review of Intellectual Property Law
The Federal Circuit has become much less willing to enforce a claim that is broader than the specific embodiments described in the patent. Unfortunately, its decisions provide no guidelines for identifying such situations. Nor is the court consistent in its attacks on the problem. Sometimes it simply construes the claim as limited to the specific embodiment and finds no infringement. Sometimes it invalidates the claim for want of an adequate written description or for insufficient scope of enablement. It is suggested that a careful use of the reverse doctrine of equivalents would create stability and predictability with respect to this …
Festo: A Jurisprudential Test For The Supreme Court?, 1 J. Marshall Rev. Intell. Prop. L. 69 (2001), James E. Hopenfeld
Festo: A Jurisprudential Test For The Supreme Court?, 1 J. Marshall Rev. Intell. Prop. L. 69 (2001), James E. Hopenfeld
UIC Review of Intellectual Property Law
This article contends that the Federal Circuit's decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., now on review before the United States Supreme Court, is more than just a controversial patent case. Festo raises, in addition, important issues with respect to stare decisis and the power and authority of the Federal Circuit and appeals courts in general. The jurisprudential issues raised by Festo are revealed by an analysis of the different methods used by the Federal Circuit majority on one hand, and Judge Michel's dissent on the other, in applying Supreme Court precedent to reach a legal conclusion. …
The Inherent Limitations Doctrine: How The Specification May Inherently Limit The Scope Of The Claims, 1 J. Marshall Rev. Intell. Prop. L. 124 (2001), Adam G. Kelly
UIC Review of Intellectual Property Law
In several recent decisions, the United States Court of Appeals for the Federal Circuit has established that a patentee’s express words, as disclosed in the specification, may be read into the claims to limit the scope of the invention. In addition, the Federal Circuit in Scimed and Bell Atlantic has held that not only may a patentee explicitly limit a claim term in the specification, but she may also do so “by implication.” Thus, a specification may inherently limit the scope of a claimed invention constituting what the author calls the “inherent limitations doctrine.” This new wrinkle in claim interpretation …