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Full-Text Articles in Law
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
Duke Law & Technology Review
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Piracy Deserves No Privacy, Frank Chao
Piracy Deserves No Privacy, Frank Chao
Duke Law & Technology Review
The Recording Industry Association of America ("RIAA"), the music industry's trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing …
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Duke Law & Technology Review
Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
Duke Law & Technology Review
With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?
Lights, Camera, Lawsuit, A. J. Bedel
Lights, Camera, Lawsuit, A. J. Bedel
Duke Law & Technology Review
As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have …
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Duke Law & Technology Review
In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
Duke Law & Technology Review
With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Duke Law & Technology Review
Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student's position in the creative process.
Unintended Consequences: State Merger Statutes And Nonassignable Licenses, Joshua G. Graubart
Unintended Consequences: State Merger Statutes And Nonassignable Licenses, Joshua G. Graubart
Duke Law & Technology Review
The confused state of most state corporate merger statutes allows many intellectual property licenses to find their way into unintended hands by way of corporate merger, in spite of non-assignment clauses. Clearly a detriment to licensors, corporate licensees too should be wary of depending upon the merger statute; a court ruling may not go their way. The states must clean up their collective act and bring some much needed certainty to a highly unpredictable intersection of corporate and intellectual property law.
Strengthening The Distinction Between Copyright And Trademark: The Supreme Court Takes A Stand, Jessica Bohrer
Strengthening The Distinction Between Copyright And Trademark: The Supreme Court Takes A Stand, Jessica Bohrer
Duke Law & Technology Review
Until recently, the question of whether §43 of the Lanham Act prevented the unaccredited copying of an un-copyrighted work was an open one. However, in Dastar v. Twentieth Century Fox, the United States Supreme Court speaks directly on this issue, emphasizing the distinction between copyright and trademark protections and cautioning against "misuse or overextension" of trademark protections into areas traditionally covered by copyright or patent law. This iBrief assesses the importance of such line drawing and explores the implications of this decision.
Are We Legislating Away Our Scientific Future? The Database Debate, Dov Greenbaum
Are We Legislating Away Our Scientific Future? The Database Debate, Dov Greenbaum
Duke Law & Technology Review
The ambiguity of the present copyright laws governing the protection of databases creates a situation where database owners, unsure of how IP laws safeguard their information, overprotect their data with oppressive licenses and technological mechanisms (condoned by the DMCA) that impede interoperation. Databases are fundamental to scientific research, yet the lack of interoperability between databases and limited access inhibits this research. The US Congress, spurred by the European Database Directive, and heavily lobbied by the commercial database industry, is presently considering ways to legislate database protections; most of the present suggestions for legislation will be detrimental to scientific progress. The …
Students, Music And The Net: A Comment On Peer-To-Peer File Sharing, David L. Lange
Students, Music And The Net: A Comment On Peer-To-Peer File Sharing, David L. Lange
Duke Law & Technology Review
As most of the public now know, the recording industry has lately filed civil suits alleging copyright infringement against hundreds of individual defendants across the country, many (I think most) of them college students and campus hangers-on. Hundreds more such suits are said to be in the offing. The nature of the infringements? Peer-to-peer file sharing via the Internet: a kind of piracy, to use the term favored by the industry, or downloading, as it is generally thought of by the students themselves - but from either perspective, the practice of recording music from the Net while making it available …
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
Duke Law & Technology Review
Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.
Eldred V. Ashcroft: How Artists And Creators Finally Got Their Due, Shalisha Francis
Eldred V. Ashcroft: How Artists And Creators Finally Got Their Due, Shalisha Francis
Duke Law & Technology Review
In regards to copyright the U.S. Constitution states: "Congress shall have the power . . . to promote the Progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The intellectual property clause was added to the Constitution because of the recognition of the importance of balancing both an author's interest in protecting their creative works with the public interest in maintaining a method by which those same works could enter the public domain. However, the ability to properly perform this balancing act has proven more …
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Duke Law & Technology Review
In a petition for writ of certiorari, Duke University requests that the Supreme Court reverse a Federal Circuit holding that, in its view, "seals the coffin on the experimental use exception for private universities." This iBrief discusses the Federal Circuit's decision in Madey v. Duke University and its possible effects on the progress of science.
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Duke Law & Technology Review
Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Duke Law & Technology Review
A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, "a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se." Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. …
Reality Bites: How The Biting Reality Of Piracy In China Is Working To Strengthen Its Copyright Laws, Graham J. Chynoweth
Reality Bites: How The Biting Reality Of Piracy In China Is Working To Strengthen Its Copyright Laws, Graham J. Chynoweth
Duke Law & Technology Review
This iBrief discusses how persistent international concern and emerging domestic concern over Chinese intellectual property theft have helped give sharper teeth to the Chinese copyright regime in the past two years and how these new laws may leave bite marks in the future.
Intellectual Property Rights And The International Treaty On Plant Genetic Resources For Food And Agriculture, Laurence R. Helfer
Intellectual Property Rights And The International Treaty On Plant Genetic Resources For Food And Agriculture, Laurence R. Helfer
Faculty Scholarship
No abstract provided.
Engaging Facts And Policy: A Multi-Institutional Approach To Patent System Reform, Arti K. Rai
Engaging Facts And Policy: A Multi-Institutional Approach To Patent System Reform, Arti K. Rai
Faculty Scholarship
The Court of Appeals for the Federal Circuit, charged with adjudicating appeals in patent cases, has adopted an unusual approach that arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by the fact-finding and policy application deficiencies of the trial courts and the Patent and Trademark Office (PTO), it has had a negative impact on innovation policy and has resulted in a patent system that is sorely in need of reform. This Article argues that because of the interdependence of the various institutions within the patent system, reform of the system …