Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 17 of 17
Full-Text Articles in Law
Overcoming Abstract Idea Exception Of Patent Subject Matter Eligibility Under 2019 Revised Patent Subject Matter Eligibility Guidance, 18 J. Marshall Rev. Intell. Prop. L. 382 (2019), Sangik Bae
UIC Review of Intellectual Property Law
This article discusses the judicial abstract idea exception of the current patent subject matter eligibility under 35 U.S.C. § 101. The current § 101 jurisprudence has been heavily criticized by lower courts and patent-stakeholders because it is hard to delineate the scope of the abstract idea exception within the current patent eligibility standard. In response, the United States Patent and Trademark Office (USPTO) issued the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG). This article addresses the issue of whether the 2019 PEG fills the gap in the ambiguity of the test by summarizing the 2019 PEG. Then, the …
The Perspiration Principle,18 J. Marshall Rev. Intell. Prop. L. 463 (2019), Doug Lichtman
The Perspiration Principle,18 J. Marshall Rev. Intell. Prop. L. 463 (2019), Doug Lichtman
UIC Review of Intellectual Property Law
Should copyright be awarded in an instance where a work of authorship lacks inspiration and is instead simply the result of necessary and genuine hard work? Should patents likewise be offered to inventors whose achievements derive not from any flash of genius but from sweat and labor alone? In this Essay, Professor Lichtman revisits the economic case in favor of a "perspiration principle" under which hard work would be a sufficient trigger for intellectual property protection, even in instances where the resulting achievements lack the creative spark that patent and copyright law typically require.
When Enough Is Not Enough: Can Post Filing Experimental Data Bridge The Gap In Patent Disclosure Of Non-Enabling Specifications In The Unpredictable Arts?, 18 J. Marshall Rev. Intell. Prop. L. 496 (2019), Fei Sha
UIC Review of Intellectual Property Law
On issues of 35 U.S.C. §112, the Federal Circuit has been inconsistent in determining the extent to which patent applicants need to disclose examples of their claimed inventions in patent specifications to fully enable their patent claims. Confusion as to how many or what types of examples amount to sufficient disclosure is augmented for inventions in the unpredictable arts, such as chemistry, biotechnology, and pharmaceuticals. Current practice skewing towards disclosure of examples in greater numbers is a misguided effort to satisfy enablement, as shown by patents at issue in two recent Federal Circuit cases. A qualitative approach to disclosure is …
Scandal In The Us And Australian Wine Industry! Trademarks And Gis As A Consumer Magnet?, 118 J. Marshall Rev. Intell. Prop. L. 421 (2019), Sarah Hinchliffe
Scandal In The Us And Australian Wine Industry! Trademarks And Gis As A Consumer Magnet?, 118 J. Marshall Rev. Intell. Prop. L. 421 (2019), Sarah Hinchliffe
UIC Review of Intellectual Property Law
In a dense global market, wine is heavily reliant on catering to the needs of consumers. Consumers, as part of the decision-making process, rely on information – comprising information type, and the way that it is portrayed. This article identifies branding opportunities for New World wineries – particularly in the United States and Australia – to capitalize on without compromising innovation in branding nor breaching IP law. It highlights that wineries in the New World have a plethora of opportunity to create a spunk and pizazz effect in their branding. At the same time, it cautions what wineries should avoid …
The Uncertain Protection Of "Derivative" Trade Secrets, 18 J. Marshall Rev. Intell. Prop. L. 241 (2019), Benjamin Bradford, Remi Jaffre
The Uncertain Protection Of "Derivative" Trade Secrets, 18 J. Marshall Rev. Intell. Prop. L. 241 (2019), Benjamin Bradford, Remi Jaffre
UIC Review of Intellectual Property Law
This article discusses when a trade secret misappropriation claim can be premised on the acquisition, disclosure, or use of a product or method derived from a trade secret, rather than the acquisition, disclosure, or use of a trade secret itself. Although this question is likely to take on increasing importance as digital products that were made through the use of trade secrets and that can easily be copied become a larger part of everyday life, courts have rarely focused on it and have not come to any consensus. In this article, we survey the existing, inconsistent case law and analyze …
A Tale Of Two Pioneers: Trademarking A Tattoo, 18 J. Marshall Rev. Intell. Prop. L. 400 (2019), Jeanette Braun
A Tale Of Two Pioneers: Trademarking A Tattoo, 18 J. Marshall Rev. Intell. Prop. L. 400 (2019), Jeanette Braun
UIC Review of Intellectual Property Law
This is a short article written in a creative style that narrates the story of the first tattoo that was federally registered as a trademark.
Abstraction In Software Patents (And How To Fix It), 18 J. Marshall Rev. Intell. Prop. L. 364 (2019), Athul Acharya
Abstraction In Software Patents (And How To Fix It), 18 J. Marshall Rev. Intell. Prop. L. 364 (2019), Athul Acharya
UIC Review of Intellectual Property Law
Software has long posed a quandary for patent law. As many have observed, software is an abstract technology—but abstract ideas are supposedly ineligible for patenting. This Article explores just what that means, what it doesn’t mean, and what might fix the problem of abstraction in software patents. This Article offers two related ways to understand the abstract nature of software. First, computer science defines itself as a “science of abstraction,” and that self-definition finds real doctrinal purchase. Second, software code is designed to be what the doctrine calls “functional”—to describe abstract results that can be executed on heterogenous hardware without …
There Has Been An Infringement Of My Work And My Circuit Does Not Allow Me To Sue! The Time Has Come To Hash-Out The Federal Circuit Court Discrepancy On Copyright Registration, 18 J. Marshall Rev. Intell. Prop. L. 344 (2019), Thomas Placzek
UIC Review of Intellectual Property Law
The time has come to relieve the ambiguity created by the continued lack of consensus regarding the proper interpretation of 17 U.S.C. § 411(a). The persistent split amongst the various Federal Courts regarding the meaning of § 411(a)’s registration requirement allows some fortunate artists to immediately enforce their rights in a number of jurisdictions, while artists from other jurisdictions are prohibited from immediately enforcing the same rights. Several circuit and district courts subscribe to the “application approach,” while others employ the “registration approach.” This comment delves into the rationale behind the respective approaches, and discusses the arguments made for and …
The Golden Claims: Necessary Support For Nonprovisional Application Prior Art References To Be Granted Provisional Application Filing Dates During Inter Partes Review Proceedings, 18 J. Marshall Rev. Intell. Prop. L. 326 (2019), Madison Makeever
UIC Review of Intellectual Property Law
Whether to beat an impending disclosure, disclose the most information possible, or simply to get the earliest possible filing date, provisional patent applications are a beneficial way to protect your patent rights. The few formal and statutory requirements allow provisionals to be prepared on a rush basis. The Federal Circuit held in 2017 that published nonprovisional applications can constitute prior art as of its provisional filing date but only as to elements in the application. However, ambiguity regarding published applications in the Federal Circuit’s 2015 precedent for awarding a patent it’s provisional filing date may lead to increased patent invalidation …
Insolvency And Trademarks: How The Bankruptcy Code's Treatment Of Trademarks Promotes Naked Licensing, 18 J. Marshall Rev. Intell. Prop. L. 475 (2019), Michael Hopkins
Insolvency And Trademarks: How The Bankruptcy Code's Treatment Of Trademarks Promotes Naked Licensing, 18 J. Marshall Rev. Intell. Prop. L. 475 (2019), Michael Hopkins
UIC Review of Intellectual Property Law
In 1988, Congress amended § 365 of the Bankruptcy Code, which deals with the rejection of executory contracts, in order to allow intellectual property licensees to retain usage rights. However, this amendment did not include adding trademarks to the Bankruptcy Code’s definition of “intellectual property.” As such, Circuit Courts are divided on what remedies are available to trademark licensees following a licensor’s rejection of their agreement. Recently, the circuit split escalated when the First Circuit decided Mission Product Holdings, Inc. v. Tempnology, LLC, which was inconsistent with the Seventh Circuit’s 2014 holding in Sunbeam Products, Inc. v. Chicago American Manufacturing. …
Patent Infringement Under 35 U.S.C. § 271(G) For Goods Made In The United States, 19 Uic Rev. Intell. Prop. L. 64 (2019), Peter Hecker
Patent Infringement Under 35 U.S.C. § 271(G) For Goods Made In The United States, 19 Uic Rev. Intell. Prop. L. 64 (2019), Peter Hecker
UIC Review of Intellectual Property Law
Section 271(g) filled a loophole that allowed companies to escape patent infringement by producing goods overseas and then importing them. In filling this loophole, Congress may have unintentionally broadened patent liability for the production and use of goods in the United States. This paper discusses important ramifications of this broadened language and encourages the Federal Circuit or Congress to clarify the extent of patent infringement under Section 271(g).
Louboutin Heels And The Competition Goals Of Eu Trade Mark Law, 19 Uic Rev. Intell. Prop. L. 38 (2019), Cesar Ramirez-Montes
Louboutin Heels And The Competition Goals Of Eu Trade Mark Law, 19 Uic Rev. Intell. Prop. L. 38 (2019), Cesar Ramirez-Montes
UIC Review of Intellectual Property Law
This article critically examines the judicial applications of the EU functionality doctrine and argues that recent CJEU decisions are at odds with the EU legislator’s declared intention to give functionality a much greater role in promoting product market competition. As a statutory ground for refusing registration even in the presence of consumer association and established goodwill, EU functionality serves to avoid undue competitive advantages by refusing protection in support of freedom to compete. EU functionality represents a significant obstacle to registration for purely natural, technical and value adding signs representing the shape of the goods. As of 2015, the wording …
The F Word - An Early Empirical Study Of Trademark Registration Of Scandalous And Immoral Marks In The Aftermath Of The In Re Brunetti Decision, 18 J. Marshall Rev. Intell. Prop. L. 404 (2019), Vicenc Feliu
UIC Review of Intellectual Property Law
This article seeks to create an early empirical benchmark on registrations of marks that would have failed registration as “scandalous” or “immoral” under Lanham Act Section 2(a) before the Court of Appeals for the Federal Circuit’s In re Brunetti decision of December 2017 and to briefly examine the possible outcome of the Supreme Court’s grant of certiorari on that case. The Brunetti decision followed closely behind the Supreme Court’s Matal v. Tam and put an end to examiners denying registration on the basis of Section 2(a). In Tam, the Supreme Court reasoned that Section 2(a) embodied restrictions on free speech, …
The Forking Phenomenon And The Future Of Cryptocurrency In The Law, 19 Uic Rev. Intell. Prop. L. 1 (2019), Chelsea Button
The Forking Phenomenon And The Future Of Cryptocurrency In The Law, 19 Uic Rev. Intell. Prop. L. 1 (2019), Chelsea Button
UIC Review of Intellectual Property Law
In the evolving and ever-changing world of cryptocurrency, new and exciting phenomena arise, including hard forks. Hard forks occur when two groups supporting a cryptocurrency disagree on how the code should evolve. If the changes are incompatible, the code diverges into two chains, essentially doubling the amount of each holder’s coin. Forking a coin is theoretically easy. However, maintaining a fork requires great effort and support by members of the community. This Article discusses the November 15, 2018 Bitcoin Cash hard fork and subsequent lawsuit, analyzing anti-trust, negligence, and conversion claims. Forcing de facto fiduciary duties on developers and miners …
The New Approaches To Digital Anti-Piracy In The Entertainment Industry, 19 Uic Rev. Intell. Prop. L. 75 (2019), Igor Slabykh
The New Approaches To Digital Anti-Piracy In The Entertainment Industry, 19 Uic Rev. Intell. Prop. L. 75 (2019), Igor Slabykh
UIC Review of Intellectual Property Law
This article is about digital anti-piracy. The entertainment industry has been combating piracy over the internet for the last 40 years. This article gives an overview of the digital anti-piracy approaches, analyzes the reasons why people commit piracy, demonstrates the disappointing results of the current state of anti-piracy, and offers new approaches that may help to reduce digital piracy.
Intersection Of Antitrust Laws With Evolving Frand Terms In Standard Essential Patent Disputes, 18 J. Marshall Rev. Intell. Prop. L. 259 (2019), Claire Guo
UIC Review of Intellectual Property Law
This article addresses the issues of overlapping enforcement of antitrust laws and FRAND (Fair, reasonable and non-discriminatory terms) in standard essential disputes. Briefly, this article observes that the evolving FRAND terms will affect the degree that antitrust laws may intervene into SEP license practice. Part I of this article is a brief introduction to the background and main sections. Part II describes the evolvement of FRAND into a globally converged standard of royalty determination and a process through joint efforts of global courts. Part III discusses the changing interaction of FRAND with antitrust laws in three major jurisdictions, respectively China, …
Nationalizing Trips: An Examination Through Exceptions, 18 J. Marshall Rev. Intell. Prop. L. 285 (2019), Evan Tallmadge
Nationalizing Trips: An Examination Through Exceptions, 18 J. Marshall Rev. Intell. Prop. L. 285 (2019), Evan Tallmadge
UIC Review of Intellectual Property Law
What should not be patentable? The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) codifies certain categories of subject matter that nations can exclude from patent protection. This Article examines how nations have interpreted these exclusions through an analysis of their national manuals of patent examining procedure and more importantly what explicit exceptions to patentability these countries have listed. The Article proceeds to analyze both the similarities and differences in approaches towards exclusions that attempt to ban the same subject matter from patentability and differences in what countries have chosen to bar from patenting. The Article concludes with an …