Law Commons^™

A Proposed Test For Applying The Doctrine Of Equivalents To Biotechnology Inventions: The Nonobviousness Test, Qing Lin

Washington Law Review

In patent law, the doctrine of equivalents allows courts to find infringement if one makes or uses a device or process without substantial change from a patented invention. A test that clearly defines the appropriate scope of patent protection is crucial to development in various industries, especially in biotechnology, an industry that requires significant long-term investment. However, the most commonly applied test for determining equivalents is vague and fails to provide practical guidance. The "all elements" limitation to the test causes additional confusion. A more appropriate test for defining the scope of patent protection would be the "nonobviousness test," a …

A Look At Damage Awards Under Japan's Trademark Law And Unfair Competition Prevention Law, Masumi Anna Osaki

Washington International Law Journal

Although the United States and Japan have similarly worded intellectual property statutes, significant differences in the stated statutory objectives as well as the substantive rights protected by those laws give rise to concern over the scope and quality of intellectual property protection offered in Japan. Collectivist values that frown upon personal gain have contributed to the less-than-adequate enforcement of individual intellectual property rights in Japan, and this socio-judicial ethic has been consistently reflected in the minimal damage awards granted by the courts. The courts' traditionally narrow construction of damage provisions in the intellectual property arena has resulted in the limitation …

A Unitary Asean Patent Law In The Aftermath Of Trips, Christian H. Nguyen

Washington International Law Journal

Members of the Association of Southeast Asian Nations ("ASEAN") have come to recognize that rigorous protection for industrial and technological innovations is essential to the economic viability of the Southeast Asian region. This recognition has heightened since the inception of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs"). TRIPs imposes minimum standards for patent protection upon signatories to the World Trade Organization, which includes most of the ASEAN member countries. Strict compliance with TRIPs standards can severely aggravate the administrative deficiencies in national patent systems, but such deficiencies can be considerably alleviated with the institution of a regional …

Privately Legislated Intellectual Property Rights: Reconciling Freedom Of Contract With Public Good Uses Of Information, J.H. Reichman, Jonathan A. Franklin

Librarians' Articles

In an age of omnipresent clickwrap licenses, we acknowledge the need for a uniform set of default rules that would validate non-negotiable licenses as a mechanism for minimizing transaction costs likely to hinder economic development in a networked environment. However, we contend that any model of contract formation not driven by the traditional norms of mutual assent requires specially formulated doctrinal tools to avoid undermining long-established public good uses of information for such purposes as education and research, technical innovation, free speech, and the preservation of free competition.

With the convergence of digital and telecommunications technologies, creators and innovators who …

The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen

Articles

The passage of the Federal Trademark Dilution Act of 1995 (the Dilution Act or Act) has been widely celebrated, as evidenced by the number of related articles, speeches and symposia. Commentators who applauded the adoption of the Dilution Act believed that a dilution claim would now be easier to prove by trademark owners against diluters because trademark owners would not have to establish the troublesome factual issue of consumer confusion. The courts have embraced the Act, and it has already proven to be an effective weapon for trademark owners. One court has even suggested trademark owners asserting claims of dilution …

Reevaluating The Forum Non Conveniens Doctrine In Multiterritorial Copyright Infringement Cases, Brenda Tiffany Dieck

Washington Law Review

The tension between the internationalization of copyright and the territorial remedies national laws provide is illustrated when the same infringer infringes a copyright in multiple countries. The copyright owner can bring suit in each country separately or attempt to consolidate all claims into one forum. Commentators have identified that in consolidated suits, even if jurisdiction over the foreign claims is proper, the discretionary forum non conveniens doctrine rmains a "wild card." This Comment explores in greater depth why the doctrine is unpredictable and argues that it is being abused by U.S. federal courts in multiterritorial copyright suits, exacerbating the problem …

The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan

Articles

This Article analyzes the effectiveness of China's intellectual property laws and the role they play in China's foreign trade and investment. It gives an overview of how intellectual property laws developed in China and explains why they have been inadequate, especially with respect to the protection of the interests of U.S. companies. It then illustrates why America's response to the piracy of intellectual property has been largely ineffective. The Article explains why China's strides in intellectual property law have fallen short of expectations and offers alternative methods of protecting intellectual property rights in China.

The Antitrust Duty To Deal And Intellectual Property Rights, James C. Burling, William F. Lee, Anita K. Krug

Articles

This Article discusses how courts have addressed so-called ‘"duty-to-deal" antitrust claims involving intellectual property, and what they should do in those circumstances to ensure appropriate deference to the competition goals of intellectual property doctrine.

Part II discusses duty-to-deal principles in the general case, where intellectual property rights are not at issue, noting that hard and fast rules have yet to emerge.

Part III discusses the approaches courts have taken in the intellectual property context and contends that, although many courts have conducted their analyses with a view to the objectives of patent law, at least two have not, with potentially …

The Use Of Preclusion Doctrine, Antisuit Injunctions, And Forum Non Conveniens Dismissals In Transnational Intellectual Property Litigation, Peter Nicolas

Articles

Conflicting standards among the federal circuits over the applicability of inherent powers in the transnational intellectual property context and the divided authority regarding the jurisdiction of U.S. federal courts over foreign intellectual property claims severely hamper the ability of federal district courts to use these tools in such a manner so as to prevent parties in transnational intellectual property suits from engaging in strategic behavior. This Comment seeks to reconcile these conflicts where possible and, where irreconcilable, to demonstrate that the text and history of federal statutes conferring subject matter jurisdiction on federal courts and placing limits on their issuance …