Law Commons^™

A Glance Not Taken—When Claim Interpretation Ignores The Best Evidence, David R. Soucy, Esq.

Fordham Intellectual Property, Media and Entertainment Law Journal

A little-known but longstanding rule of patent law is that the article “a” means one or more than one when recited within a patent claim. But the commonly understood meaning of “a” is a numerosity of just one. The case of Salazar v. AT&T Mobility is about the misapplication of the patent law general rule of indefinite articles to find that the term “a microprocessor” means just one microchip. That fundamental tenet states that “a” means one or more than one, unless a patentee disavowed that meaning as evidenced by: (1) other language of the claims (i.e., dependent …

Good Readers, Good Writers, And Ai: Tool, Collaborator, Author?, Katherine Jung

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial Intelligence (“AI”) systems have revolutionized the world of creative writing. Beyond providing simple grammar or spelling assistance, the most advanced of these systems can now play a collaborative role in the writing process, increasing productivity while pushing content in new and surprising directions. AI-generated creativity raises compelling questions in the context of copyright law, which has long been predicated on the assumption of human authorship. The capacity of AI to one day generate writing at a level of mastery on par with human beings complicates traditional notions of creativity, the protection of which the entire copy …

Algorithmic Dead Hands: What Is Dead May Never Die, Zachary L. Catanzaro

Fordham Intellectual Property, Media and Entertainment Law Journal

Can we transcend death? By harnessing large language models and the invasive data harvesting of surveillance capitalism, AI systems now offer testators unprecedented posthumous control over property and heirs. These algorithmic ‘dead hands’ promise a seductive form of digital immortality, but if left unchecked, they threaten to spawn a novel breed of perpetuities. This technology risks birthing a digitized techno-feudal Necrocracy marked by inalienable property, extreme wealth consolidation, and the dead’s perpetual dominion over the living.

While modern reforms have weakened the common law’s traditional hostility to dead hand control, these reforms failed to anticipate technologically embodied intentionality persisting beyond …

A Trade-Off In Smart Contract Arbitration; Sacrificing Arbitrators’ Anonymity For Transparency?, Bahadir Köksal

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent growth in blockchain usage has substantially affected the number of transactions executed via smart contracts. In parallel, the number of transactions will likely increase the number of disputes that arise from these smart transactions. Some innovative arbitration platforms have emerged in response to the urgent need for a tailor-made dispute resolution mechanism. These platforms tend to promote the anonymity of arbitrators because of their decentralized nature and secured proceedings. Does the anonymity of arbitrators’ identities and skills increase the transparency in smart contract arbitration? And to what extent can the anonymity of arbitrators be sacrificed for more transparent …

Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Marquette Intellectual Property & Innovation Law Review

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Looking For Liability For Harmful Social Media Content And Cyberbullying After Gonzalez V. Google, Llc, Elizabeth M. Jaffe

Marquette Intellectual Property & Innovation Law Review

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A Questionable Categorization — Trademark's Struggle To Protect Tribal Cultural Property, Emilie (Smith) Rohde

Marquette Intellectual Property & Innovation Law Review

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Keeping It Wreal: How The Eleventh Circuit's Wreal Decision Is Better Suited For A Uniform Reverse Confusion Multifactor Analysis, Sean J. Flaherty

Marquette Intellectual Property & Innovation Law Review

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The Effects Of Section 101'S Subject Matter Eligibility Requirement On Fintech Patent Valuation Models, Fhernam Batiz

Marquette Intellectual Property & Innovation Law Review

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Withdrawing Lanham Act Section 2(C) Consent: What Should Courts Do?, Zachary R. Semancik

Marquette Intellectual Property & Innovation Law Review

The dispute between Luka Dončić and his mother over his ability to withdraw consent to a trademark of his name revealed a gap in trademark law. This Comment explains the lack of legal guidance on how a court should rule if a person initially gives their consent to use their name as a trademark but later wishes to withdraw that consent. The Comment addresses two contrasting ideas. The first is the freedom to contract and the desire of courts to protect the voluntary consent of individuals to allow others to trademark their name. Alternatively, the Comment addresses the right of …

Protecting The Brand: Analyzing The Legal Landscape Of Negative Product Placements, Katie M. Brown, Sarah M. Brown, W. Eric Brown

Marquette Intellectual Property & Innovation Law Review

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Innovative Or Invalid: Amgen, Inc. V. Sanofi, Special Masters, & The Seventh Amendment Right To A Trial By Jury In Civil Proceedings, Nivory Gordon Iii

Marquette Intellectual Property & Innovation Law Review

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Solving The Consideration Problem In Non-Compete Agreements: Continued At-Will Employment Is Inadequate Consideration, Alexander H. Ferrone

Marquette Intellectual Property & Innovation Law Review

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What Is "Substantial Similarity"? Towards A Methodology For Reducing Subjectivity In Design Copyright Disputes, Robert Greenstreet, Karen Greenstreet

Marquette Intellectual Property & Innovation Law Review

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Dmca's Double Scienter Requirement: Allowing Intermediary Software Companies To Be Worry-Free In Making A Buck Off Another's Dime, Kayleigh Lemery

Marquette Intellectual Property & Innovation Law Review

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The First Amendment And Trademark Law: A Conflict Of Rights, Maia Hentges

Marquette Intellectual Property & Innovation Law Review

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Ai, The New Frontier: An Analysis On Trademark Litigation Strategies In The Face Of Generative Artificial Intelligence, Melissa Biesmann

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Territorial Intellectual Property Rights, Fhernam Batiz

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Navigating The Game: Balancing Innovation And Intellectual Property Rights In Video Game Development, Alek Giecewicz

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Precision Is Necessary In Patents, Twinkle Dutta

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Jack Daniel’S And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Faculty Scholarship

In Jack Daniel’s v. VIP Products, the Supreme Court announced a bright-line rule: whatever speech protections govern the use of trademarks in artistic works, no such rule applies “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” Those who engage in “trademark use,” in other words, must face the usual likelihood-of-confusion standard, regardless of whether their use also has expressive dimensions. The Jack Daniel’s defendant conceded that it was engaged in trademark use, so the opinion did not do the hard work …

Access To Justice For Black Inventors, Jordana R. Goodman, Khamal Patterson

Vanderbilt Law Review

To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.

An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art ("PHOSITA") would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use …

Navigating Copyright Law In A Digital World With An Analog Rulebook: Guidance For Visual Artists, Stephanie Moser

University of San Francisco Law Review

No abstract provided.

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

The Original Instagram: Whose Property Is It?, Sue Altmeyer

Akron Law Faculty Publications

This article examines why the “Original Creation and Transfer” test is a better approach than implied transfer when determining ownership of a social media account. The Original Creation and Transfer test promotes judicial economy, clarity, and predictability. It also has the advantages of a property rule, namely encouraging investment, reducing litigation, and allowing employee mobility. This test achieves the proper balance between worker and employer rights and yields fair results in test cases. Additionally, a uniform law should be created based on the Original Creation and Transfer test to help promote uniformity across jurisdictions.