Law Commons^™

The New Roaring Twenties: The Progressive Agenda For Antitrust And Consumer Protection Law, Jorge L. Contreras

Utah Law Review

It is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century.

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

Ip Protection For Love: Dating App’S Feuds And Foes, Meredith Williams

Journal of Intellectual Property Law

A new method of meeting others and dating online has emerged amid today’s age of technology. Online dating, now largely facilitated through apps, has grown exponentially since its genesis. With this growth, online dating services have sought intellectual property protection. This Note examines the patentability of dating app features, primarily the digital user interface through the backdrop of a recent dispute between Tinder and Bumble. It begins with a history of online dating and analysis of why apps have become a popular tool to launch a business. The Note then delves into a new dating app concept and accompanying patent …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Journal of Intellectual Property Law

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

Transparency Is The Best Policy: The Case For Georgia To Allow Access To The Source Code Of Proprietary Voting Software, Grace Repella

Journal of Intellectual Property Law

Within the past century, electronic voting systems have become common place. Most states hold their elections via electronic voting machines. These voting machines require software, and that software is built out of source code. Most states, including the state of Georgia, use voting machines with proprietary software made by private companies to run their elections. These companies have pushed back against access to the source code of their software because of intellectual property issues related to trade secret and copyright law. Nonetheless, states have an interest in guaranteeing their elections are not vulnerable to attack or hacking, and voters want …

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation Of 17 U.S.C. § 120, Hunter T. Payne

Journal of Intellectual Property Law

The Eighth Circuit expanded architectural copyright protection in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., by interpreting § 17 U.S.C. 120(a) consistent with both its plain meaning and legislative intent. In doing so, the court took a pivotal step in protecting architects’ copyright interest in floorplans posted on virtual real estate websites without consent. The National Association of Realtors quickly took offense, declaring this an invitation to waves of litigation, hindering the current state of real estate transactions that often occur via websites like Zillow or Redfin. However, as highlighted by the Eighth Circuit, copyright fair use …

To "The" Or Not To "The"? The Question Has Been Answered: An Examination Of Trademark Bullying In The Context Of The Ohio State University's Recent Trademark Registration, Jennifer M. Danker

Journal of Intellectual Property Law

This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.

By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Journal of Intellectual Property Law

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown

Journal of Intellectual Property Law

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …

Balancing The Inequities In Applying Natural Property Rights To Rights In Real Or Intellectual Property, Lolita Darden

Texas A&M Journal of Property Law

Eric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods.

Claeys’s community “goods” focus, …

Weisner V. Google Llc: An Effort To Provide Clarity Regarding Patent Subject Matter Eligibility, Poirot, Nicole

Santa Clara High Technology Law Journal

The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) recently issued a precedential two-to-one decision regarding patent subject matter eligibility under section 101 of the Patent Act.1 In Weisner v. Google LLC, the Federal Circuit held that U.S. Patent Nos. 10,380,202 and 10,642,910 are directed to abstract ideas of creating digital travel logs which are patent ineligible.2 Additionally, the Court held that U.S. Patent Nos. 10,394,905 and 10,642,911 are directed to both creating and using travel logs to improve computerized search results and are potentially patenteligible.3 The majority’s decision is an attempt to clarify the historically gray …

The Nhk-Fintiv Rule: Patent Law’S Whack-A-Mole, Barbier, Janelle

Santa Clara High Technology Law Journal

Since their inception in 2013, inter partes review proceedings have steadily gained in popularity, killing patents at an astounding rate. It is no wonder that defendants flee to the PTAB when staring down costly patent infringement suits in federal court. But an IPR institution is not a right––it is at the sole discretion of the USPTO Director. And despite increased petitions for IPR over the past few years, institution rates have declined. The reason for fewer institutions seemingly lies with the PTAB’s decision to employ certain factors in determining whether public policy weighs against IPR institution. This precedential doctrine—known as …

Algorithmic Auditing: Chasing Ai Accountability, Goodman, Ellen P., Trehu, Julia

Santa Clara High Technology Law Journal

Calls for audits to expose and mitigate harms related to algorithmic decision systems are proliferating,3 and audit provisions are coming into force—notably in the E.U. Digital Services Act.4 In response to these growing concerns, research organizations working on technology accountability have called for ethics and/or human rights auditing of algorithms and an Artificial Intelligence (AI) audit industry is rapidly developing, signified by the consulting giants KPMG and Deloitte marketing their services.5 Algorithmic audits are a way to increase accountability for social media companies and to improve the governance of AI systems more generally. They can be elements of industry codes, …

The Future Of Healthcare Is Generic: Expanding Hatch-Waxman To Equitably Regulate The Healthcare Products Industry, George Encarnacion Jr.

DePaul Journal of Health Care Law

This article serves to address the statutory disconnect in the healthcare industry regarding generic products. There has been marked success in the generics market pertaining to pharmaceutical drugs, but the same cannot be said for medical devices and, in more recent times, biosimilars. The end result for consumers is higher product prices, limited access of care, and a more burdensome healthcare system. This article explores the statutory history of drug and medical device approval and production. It also explores differences between modern regulation of generic drugs and generic medical devices, focusing on key issues of FDA approval, consumer safety and …

The Old And New Divides Of Patent Law: From The Theory Of Antedation To Defining Immediately Envisageable Limited Classes, Condon, Eamon M.

Santa Clara High Technology Law Journal

Recently, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) ruled on a patent case involving the application of pre-America Invents Act (“AIA”) antedation and the issue of when a genus of compounds is narrowly limited enough to anticipate an individual compound found within the genus.1 On appeal, this case generally discussed why the claimant’s anticipation and obviousness claims failed.2

While the entire Federal Circuit decision will be discussed, this Comment will discuss in greater depth the reasons why antedation is no longer applicable under the AIA, and the implications of the Federal Circuit’s decision to not …

“That Means Nothing To Me As A Normal Person Who Doesn't Know About Patents”: Usability Testing Of Google Patents And Patent Public Search With Undergraduate Engineering Students, Graham Sherriff, Molly Rogers

Journal of the Patent and Trademark Resource Center Association

Patent searching is an important research tool for undergraduate engineering students, yet it requires special topic knowledge to conduct successfully. Patent database websites have the ability to alleviate or add to the complexity of patent searching, depending on their usability. Prompted by the launch of the US Patent and Trademark Office’s Patent Public Search (PPS) website in early 2022, the authors investigated the usability of PPS and Google Patents. The study's objective was to gain insights into the ways in which the websites of commonly-used patent databases support undergraduate students’ patent searching activities. The study examined students’ performance of typical …

A Case Study Of The Complicated History Of Rice University’S First Patents, Hannah G. Edlund

Journal of the Patent and Trademark Resource Center Association

Digitization and online public databases have made patent searches a much simpler pursuit in recent years. However, uncovering a pre-digital era patent’s history and context remains challenging. A search for the first patents assigned to Rice University highlighted associated issues. Older patent formats often do not clearly indicate inventor-assignee relationships, and applications and official communications are not available online. To determine how Rice came to own three 1948 patents, extensive archival research was required. Were these patents assigned to the University by inventors, independent of its support or funding, or was their work performed at and for Rice, thus obliging …

Security-Enhanced Serial Communications, John White, Alexander Beall, Joseph Maurio, Dane Fichter, Dr. Matthew Davis, Dr. Zachary Birnbaum

Military Cyber Affairs

Industrial Control Systems (ICS) are widely used by critical infrastructure and are ubiquitous in numerous industries including telecommunications, petrochemical, and manufacturing. ICS are at a high risk of cyber attack given their internet accessibility, inherent lack of security, deployment timelines, and criticality. A unique challenge in ICS security is the prevalence of serial communication buses and other non-TCP/IP communications protocols. The communication protocols used within serial buses often lack authentication and integrity protections, leaving them vulnerable to spoofing and replay attacks. The bandwidth constraints and prevalence of legacy hardware in these systems prevent the use of modern message authentication and …

How Intellectual Property Laws Allow For Fashion Dupes, Miranda Nolan

SLU Law Journal Online

The rise of technology brought an increase in the number of "knockoff" fashion pieces that are easily accessible to consumers. In this article, Miranda Nolan discusses the impact and growth of fast fashion brands that changed fashion for average Americans who are unable to afford luxury brands.

Cuban Embargo: An Insufficient Measure To Encourage Us Foreign Policy Interests, Esme Jm Prowse

Major Papers

This major paper examines the Cuban embargo as an ineffective hard power policy and explores the potential of soft, hard, and smart power as alternative approaches to resolve the failures of the 60-year-old blockade. The paper analyzes the historical context and rationale behind the embargo and assesses its impact on Cuban-American relations, regional stability, and U.S. national interests. The study argues that the embargo has failed to achieve its intended goals and has instead perpetuated a cycle of hostility, isolation, and human rights abuses. By drawing on the theoretical frameworks of soft, hard, and smart power, the paper presents policy …

Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton

Brooklyn Journal of Corporate, Financial & Commercial Law

In response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called morals clauses. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to breach …

From Models To Mannequins: The Oxymoronic Equation Of International Labor Law Standards In The World Of Fashion, Namrata Bhowmik, Naman Anand

Cleveland State Law Review

Fashion law is an emerging field that addresses the legal issues that arise in the fashion industry. With the rapid growth and globalization of the fashion industry, there is an increasing need for specialized legal guidance in this area. Fashion law encompasses a wide range of legal issues, including intellectual property, contract law, employment law, international trade law, and environmental law.

One of the main drivers behind the need for fashion law is the rise of counterfeiting and intellectual property theft in the fashion industry. With the proliferation of ecommerce and social media, it has become easier than ever for …

Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica

Cleveland State Law Review

This Note dives into the world of cryptocurrency and family law in Ohio. With its current popularity and dramatic fluctuations, cryptocurrency has created a new legal issue in the family law practice. Specifically, this Note focuses on the concealability of Bitcoin and how that influences division of property, spousal support, and child support in Ohio divorce proceedings and settlements. To tackle this issue, this Note begins with the history of Bitcoin, its value since the beginning, as well as the reason for its fluctuations. This Note also looks into what makes Bitcoin and other cryptocurrency forms so concealable. This Note …

Placing A Bid: A Comparison Of The Traditional Marketplace (Stocks) And Non-Traditional Markets (Nfts), Nieh, Haley

Santa Clara High Technology Law Journal

Non-fungible Tokens (NFTs) are exploding in the marketplace and are not losing momentum anytime soon. Artists, athletes, celebrities, and even brands and luxury houses are rolling out NFTs. With this excitement, a great deal of profit is being generated; the market cap of NFTs is expected to grow from $3 billion in 2022 to $13.6 billion in 2027 (a compound annual growth rate of 35 percent).1

Blockchain technologies are an empowering platform for democratization of financial instruments and transactions. Cryptocurrency has received some regulation from the United States Securities and Exchange Commission (SEC), but clarity and regulation of NFTs have …

Don’T Cite Funk, Oskar Liivak

Catholic University Law Review

For patent eligibility the Supreme Court continues to rely on its 1947 opinion in Funk Brothers Seed v. Kalo Inoculant. It is one of the most cited cases for patent eligibility and the Supreme Court relies heavily upon it. It forms one of the foundations of the current eligibility test in Mayo v. Prometheus. This article argues that this reliance is in error. Funk is just not appropriate for modern patent eligibility. Interestingly this view is not new. Ever since its appearance in Flook, the Supreme Court’s use of Funk has been dogged by criticism that faults the Court for …

The Patent Trial And Appeal Board: A Heightened Call For Transparency, Nicole Bruner

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Certificates Of Correction And Aia Trials, Andrew Kerrick

Chicago-Kent Journal of Intellectual Property

No abstract provided.

What Covid-19 Retail Bankruptcies Can Teach Us About Intellectual Property In A Post-Pandemic World, Brenna Arbuckle

The Journal of Business, Entrepreneurship & the Law

Both IP and bankruptcy laws are quite complex. With that in mind, this comment will narrowly focus on what retail bankruptcies amid COVID-19 can teach us about the value of IP, particularly trademarks and trade secrets, post-pandemic. Part II of this comment explores the relevant legal background, in particular IP and bankruptcy laws. Part III provides context regarding the retail industry and delves into relevant pre-pandemic trends. Further, Part IV discusses the impact of COVID-19 on the retail industry, particularly on consumer behaviors and bankruptcy bids. Part IV details lessons from such bankruptcies and the possible impacts on the industry …

From Hashtag To Hash Value: Using The Hash Value Model To Report Child Sex Abuse Material, Jessica Mcgarvie

Seattle Journal of Technology, Environmental & Innovation Law

In the summer of 2021, Apple announced it would release a Child Safety Feature (CSF) aimed at reducing Child Sex Abuse Materials (CSAM) on its platform. The CSF would scan all images a user uploaded to their iCloud for CSAM, and Apple would report an account with 30 or more flagged images to the National Center for Missing and Exploited Children. Despite Apple’s good intentions, they received intense backlash, with many critics arguing the proposed CSF eroded a user’s privacy. This article explores the technology behind Apple’s CSF and compares it to similar features used by other prominent tech companies. …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 1), Jay Conrad

Seattle Journal of Technology, Environmental & Innovation Law

A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 1) is the first of a two-part series dealing with an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 details the current tactics and impacts of Internet shutdowns and which human rights are most likely to be violated by or during a shutdown. Part 2 will address the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this …