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Full-Text Articles in Law
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Washington Journal of Law, Technology & Arts
Three appellate decisions illustrate the difficulty of acquiring trademark protection for domain names that include a top-level domain (“TLD”), such as “.com.” Courts have characterized these marks as generic or merely descriptive, which carries implications for the party seeking registration: generic marks cannot be protected, while descriptive marks can, assuming they possess a secondary meaning that makes the mark distinctive. Generic and descriptive domain names often indicate the services a company provides, with the addition of the “.com” TLD to indicate online services. One key test of genericness is whether the public identifies the mark with a service generally or …
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Washington Journal of Law, Technology & Arts
Under a new law, manufacturers and retailers that sell products in Washington State could face stiff penalties if their products are made using stolen or misappropriated information technology (“stolen IT”). In 2011 the Washington Legislature passed Substitute House Bill 1495, creating a new cause of action that allows private plaintiffs or the state attorney general to seek injunctive relief and damages against manufacturers that use stolen IT in their business operations. The law also creates an additional claim for actual damages of up to $250,000 against third parties who contract with violating manufacturers and sell the products in Washington. Using …
Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz
Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz
Washington Journal of Law, Technology & Arts
Perhaps the law review literature does not need another article on the Federal Circuit’s Bowers v. Baystate Technologies case. That case has received more than its share of attention from commentators, all criticizing Judge Rader’s majority opinion and most extolling the virtues of Judge Dyk’s dissent. Despite the storm of scholarly criticism, however, courts have followed Judge Rader’s opinion. This Article tells the untold story of why courts have been wise to do so. The Article explains how commentators have argued that federal intellectual property law should have preempted Bowers’ claims for breach of a shrinkwrap license prohibition on reverse …
Influencing The Evolving Ip System And Law Of China Through International Outreach, Esther H. Lim
Influencing The Evolving Ip System And Law Of China Through International Outreach, Esther H. Lim
Washington Journal of Law, Technology & Arts
No individual U.S. judge has influenced the evolving IP system and law of China through international outreach more than Chief Judge Rader of the Federal Circuit. Through tireless efforts, he has made an indelible footprint in the history of Chinese IP law as a judge, a professor, and an author. Chief Judge Rader has garnered rock-star status in China through dedication and commitment to contribute to, and to be a part of, China’s IP system and law. He has secured a legendary standing and will be long remembered by the Chinese IP community as an ambassador of IP and judicial …
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Washington Journal of Law, Technology & Arts
One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …
Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden
Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden
Washington Journal of Law, Technology & Arts
For decades, the relationship between the U.S. Court of Appeals for the Federal Circuit and patent law’s doctrine of inequitable conduct has resembled that between Shakespeare’s Prince Hal and John Falstaff. The former recognizes the excess, the deservedly ill repute, even the at least occasional wickedness of the latter, but cannot tear away from his close companion. Likewise, for decades, Federal Circuit judges have criticized the excesses of the defense of inequitable conduct, which can render a patent unenforceable as a result of misrepresentation or nondisclosure to the U.S. Patent and Trademark Office. Nevertheless, U.S. patent law remains wedded to …
Chief Judge Rader's Contribution To Comparative Patent Law, Toshiko Takenaka
Chief Judge Rader's Contribution To Comparative Patent Law, Toshiko Takenaka
Washington Journal of Law, Technology & Arts
Chief Judge Rader influences patent jurisprudence in other nations through his interaction with judges and lawyers from these jurisdictions. He also uses the comparative method to gain insights from experiences in these jurisdictions to improve U.S. patent jurisprudence. This Article discusses opinions authored by Chief Judge Rader from the comparative law perspective. It discusses his influence on European and Japanese patent jurisprudence in the three areas: the (I) patent eligibility, (II) nonobviousness, and (III) enablement-written description requirements. Judge Rader likewise used his knowledge of foreign jurisprudence to interpret U.S. patent statutes and to develop doctrines in these areas.
Celebrating Contributions Of Chief Judge Rader To Patent Infringement Jurisprudence, Katherine E. White
Celebrating Contributions Of Chief Judge Rader To Patent Infringement Jurisprudence, Katherine E. White
Washington Journal of Law, Technology & Arts
Chief Judge Rader’s judicial opinions contribute significantly to patent infringement jurisprudence. He writes from a teacher’s perspective, providing context and a clear lens through which legal issues may be examined. His deep reverence for the rule of law pervades his opinions, as he injects a cadre of principles governing his approach. Each opinion builds a foundation made of consistency and clarity in upholding the fundamental purposes underlying the patent grant.
Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve
Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve
Washington Journal of Law, Technology & Arts
Geographic indicators—trademarks that use a place name to indicate goods or services—are now theoretically easier to register, even if the good or service does not actually come from that place. This shift is a result of three cases, two authored by Chief Judge Randall R. Rader of the Federal Circuit Court of Appeals (California Innovations and Les Halles), and one where he served on the panel (Spirits International). These cases made it more difficult for a trademark examiner to reject an application for a primarily geographically deceptively misdescriptive mark by adding a materiality requirement. However, raising the bar was not …
Efforts To Establish Clear Standards For Exhaustion In Japan, Kaoru Kuroda, Eiji Katayama
Efforts To Establish Clear Standards For Exhaustion In Japan, Kaoru Kuroda, Eiji Katayama
Washington Journal of Law, Technology & Arts
The Honorable Chief Judge Rader has often emphasized the importance of establishing clear standards in the field of patent law. Similarly, Japanese courts in this field seem to make an effort to present a clear rule in their holdings. Patent exhaustion theory is one of the fields where a clear and concrete standard by the courts is especially needed. This Article explains several clear standards held by Japanese courts regarding this issue. It then discusses a problem raised by establishing clear standards by courts in a civil law country like Japan and also presents the Japanese Government’s efforts to ensure …
Cheaper Watches And Copyright Law: Navigating "Gray Markets" After The Supreme Court's Split In Costco V. Omega, S.A., Parker A. Howell
Cheaper Watches And Copyright Law: Navigating "Gray Markets" After The Supreme Court's Split In Costco V. Omega, S.A., Parker A. Howell
Washington Journal of Law, Technology & Arts
Some manufacturers seek to prevent unauthorized importation and sale of their foreign-made products, called “gray market” goods or “parallel imports,” through copyright law. U.S. copyright law prohibits importation of copyrighted works without the copyright owner’s permission. At least one manufacturer, Omega, sought to extend this protection to its watches, a useful product, by affixing copyrighted logos. In Costco v. Omega, S.A., Omega claimed Costco violated its distribution right by selling the watches in the U.S., while Costco contended that a first sale abroad had extinguished Omega’s rights. The case reached the U.S. Supreme Court, which affirmed by an evenly …
Loaded Question: Examining Loadable Kernel Modules Under The General Public License V2, Curt Blake, Joseph Probst
Loaded Question: Examining Loadable Kernel Modules Under The General Public License V2, Curt Blake, Joseph Probst
Washington Journal of Law, Technology & Arts
This Article examines the intersection of Linux loadable kernel modules and the license under which Linux is distributed, the General Public License (GPL) Version 2. Section I of this Article discusses ambiguous terms contained within the GPL and various interpretations of these ambiguities. Next, Section II analyzes the changing scope of legal protection for computer software, particularly as it pertains to derivative works and as applied to loadable kernel modules. Section III highlights provisions contained within the GPL that may attempt to reach beyond a traditional works analysis and examines these provisions in light of recent developments at the intersection …