Law Commons^™

Justice Breyer And Intellectual Property Law

Marquette Intellectual Property & Innovation Law Review

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Sabermetrics And Patents?: Open Source, Property Protections, And Alice V. Cls Bank

Marquette Intellectual Property & Innovation Law Review

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The Mystery Of Section 253(B), Matthew Gagnier

Marquette Intellectual Property Law Review

In 2014, Elon Musk, the renowned and socially-minded CEO of Tesla Motors, Inc., posted a blog on Tesla’s website that stated the company would be freeing up many of its patents involved in the creation of the company’s electric cars to any interested party. Yet again, Musk astounded the public by choosing the betterment of society over corporate profits—stirring up a more positive image than any other corporate personality. But there are numerous questions that Musk’s positive PR have drowned out: Where can you access the patents?; How did freeing up the patents get past the other executive officers and …

Private Or Public Right? Who Should Adjudicate Patentability Disputes And Is The Current Scheme Really Constitutional?, Jasmyne M. Baynard

Marquette Intellectual Property Law Review

“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh …

In Pursuit Of Patent Quality (And Reflection Of Reification), Kenneth L. Port, Lucas M. Hjelle, Molly Littman

Marquette Intellectual Property Law Review

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Myriad: A Look Into The Future Of Genetic Patentable Subject Matter, Nathan Edward Cromer

Marquette Intellectual Property Law Review

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The Case For Incentivizing Healthy Food By Using Patents, Enrico Bonadio

Marquette Intellectual Property Law Review

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A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen

Marquette Intellectual Property Law Review

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Repurposing - Finding New Uses For Old (And Patented) Drugs: Bridging The "Valley Of Death," To Translate Academic Research Into New Medicines, Daniel S. Sem

Marquette Intellectual Property Law Review

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How Media Got The Biggest Bite Of (The) Apple: A Look At The Media Misperception In The Apple-Samsung Case, Neha Pathak

Marquette Intellectual Property Law Review

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Patent Club Convergence Among Nations, Daniel Benoliel

Marquette Intellectual Property Law Review

The article uncovers profound empirical and conceptual shortcomings concerning the "one-size-fits-all" innovation and intellectual property-related policies used internationally. These policies surely are funneled by the World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) or the World Intellectual Property Organization’s (WIPO) archetypical Development Agenda. The article offers a novel delineation of these policies vis-à-vis distinct country groups or “convergence clubs.”

In so doing, the article offers a unique statistical model carrying out hierarchal cluster analyses for sixty-six innovating countries twice during the 1996–2011 time series period. The model detects country groups that are …

Patent Markets: An Opportunity For Technology Diffusion And Frand Licensing?, Stéphanie Chuffart-Finsterwald

Marquette Intellectual Property Law Review

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Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen

Marquette Intellectual Property Law Review

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Environmental Initiative And The Role Of The Uspto’S Green Technology Pilot Program, Sarah M. Wong

Marquette Intellectual Property Law Review

This Comment will address the environmental problems that confront the U.S. and the steps that the government has taken to solve them. Specifically, research funding and patent protection have provided the green industry an incentive to increase research and development of green technology. One of the more recent programs to help improve the patent protection of green technology, the Green Technology Pilot Program, accelerates the status of green technology through the United States Patent and Trademark Office (USPTO) patenting process. This Comment will suggest that the Program become a permanent feature within the USPTO and that it be expanded to …

Websites And Intangible Asset Amortization Under 26 U.S.C. § 197: A Marriage That Bears Little Fruit, Christopher H. Bowen

Marquette Intellectual Property Law Review

Websites are not only an important part of our electronic lives, they are an important financial and business asset in their own right. With the growth of the internet as a commercial, informational, and recreational resource, companies utilize websites as an important part of their corporate financial portfolio and structure. The increased value of websites that comes from this growth has made websites a valuable asset that companies seek to use as they would other business assets. One important consideration is how the value of websites will be treated upon sale or exchange. In other words, is the website an …

God In The Machine: Encryption Algorithms And The Abstract Exemption To Patentability, Jeremy R. Hager

Marquette Intellectual Property Law Review

This Comment explores the impact of the United States Supreme Court’s recent decision in Bilski v. Kappos upon the patentability of encryption schemes for digital content. While the majority of commentary concerning this anticlimactic decision has focused on the heated topic of software patents, little attention has been paid to the analogous field of cryptographic technology—and the patentability thereof—in light of Bilski’s “guidance.” Cryptographic technology, commonly utilized to protect digital content under the moniker Digital Rights Management (DRM) technology, has been utilized by all major content-producing industries to prevent copying by consumers of various content mediums, from software to …

I'M Still Your Baby: Canada's Continuing Support Of U.S. Linkage Regulations For Pharmaceuticals, Ron A. Bouchard

Marquette Intellectual Property Law Review

Canada's linkage regime for pharmaceuticals, modeled after the originating U.S. Hatch-Waxman regime, was brought in under intense political pressure to balance effective patent enforcement over new and innovative drugs with the timely market entry of lower-priced generic competitors. It has been almost two decades since the regulations were enacted, and to date, there has been little objective assessment as to whether the regulations have, in fact, stimulated innovation and timely generic entry. We recently completed three empirical studies on the linkage between drug approval and drug patenting under the Patented Medicines (Notice of Compliance) Regulations (NOC Regulations). Of particular interest …

Living With Patents: Insights From Patent Misuse, Vincent Chiapetta

Marquette Intellectual Property Law Review

The Author argues that the patent misuse doctrine should be eliminated. Created almost a century ago as a response to patent power, it has now not only outlived its purpose but causes affirmative harm. Other more nuanced approaches, including antitrust law, produce superior results. Although the Federal Circuit has contained the doctrine, it cannot overrule Supreme Court misuse precedent. Accordingly, the Court should abolish the doctrine at the earliest opportunity or, failing prompt action, Congress should add the matter to its ongoing patent reform agenda. The misuse experience also provides valuable insights regarding how we can appropriately live with our …

Innovation And Recovery, John F. Duffy

Marquette Intellectual Property Law Review

Crisis inevitably brings hope for recovery. The recent past has seen a great economic crisis and a crisis in the patent system. Precisely because crisis reveals the flaws in the old, recovery demands the new; it demands innovation. Economic crisis thus makes recovery in the patent system especially urgent because it reveals the degree to which continuing prosperity depends on society's ability to reorganize itself, to change, to innovate. Towards that end, society should reconsider how our patent system makes judgments about invention. More specifically, Professor Duffy will seek to show through this lecture that the change most necessary for …

The Time And Place For "Technology-Shifting" Rights, Max Stul Oppenheimer

Marquette Intellectual Property Law Review

Intellectual property policy requires balance between the goal of motivating innovation and the need to prevent that motivation from stifling further innovation. The constitutional grant of congressional power to motivate innovation by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries is qualified by the requirement that congressional enactments under the Intellectual Property Clause promote progress. The Supreme Court has already recognized a time-shifting exception to the intellectual property rights of innovators and lower courts have recognized a place-shifting exception. It is now the time and place for a general technology-shifting exception …

What About Know-How: Heightened Obviousness And Lowered Disclosure Is Not A Panacea To The American Patent System For Biotechnology Medication And Pharmaceutical Inventions In The Post-Ksr Era, Yi-Chen Su

Marquette Intellectual Property Law Review

In KSR International Co. v. Teleflex, Inc., the Supreme Court rejected the Federal Circuit's rigid application of the teaching, suggestion, or motivation test (TSM test), and replaced it with an expansive and flexible approach, in determining the question of obviousness. Nevertheless, an expansive and flexible approach to obviousness may not be consistent with the international norms of practice if it is applied literally. The U.S. Patent and Trademark Office's literal application of the decision has essentially created another set of inflexible rules, which is contrary to the Supreme Court's intent. The Federal Circuit's recent decision in In re Kubin cautiously …

Lessons Learned From Fifteen Years In The Trenches Of Patent Litigation , Rick Mcdermott

Marquette Intellectual Property Law Review

Marquette Law alum and partner with Alston+Bird, LLP, offers insights into patent litigation. In his speech, given March 5, 2010, McDermott examines how patent law developments such as Markman v. Westview Instruments, Cybor Corp. v. FAS Technologies, Inc., and In re Seagate have impacted the practice of patent infringement litigation.

Fixing Our Broken Patent System, Jay Dratler

Marquette Intellectual Property Law Review

This short Article digests what the Author see as the most important substantive criticism and proposes specific solutions in the form of the "guts" of a new patent statute. Its statutory proposal tracks the current statute's organization and has numerous annotations explaining what is the same, what is changed and why, and what never-before-codified principles of judge-made law are explicitly codified. Among the proposed statute's fundamental changes are: (1) explicit restrictions on patentable subject matter to avoid patents on bare abstractions; (2) adoption of a first-to-file system requiring worldwide novelty; (3) abolition of the doctrine of constructive reduction to practice …

Generic Entry In A Rough Economy - Proposed Legislation May Ease Health Care Costs, Laura J. Grebe

Marquette Intellectual Property Law Review

When generic drugs seek FDA approval, the pharmaceutical company files an Abbreviated New Drug Application (ANDA), in which the generic company establishes bioequivalence to its usually patented counterpart. The ANDA filer must also certify that, to the best of the filer's knowledge, the generic will not infringe on a current patent-holder's rights. This can be done by showing (1) no patent on the product exists, (2) the patent is expired, (3) the patent will expire by the time the generic is marketed, or (4) the ANDA filer believes the patent is invalid - called a Paragraph IV certification. A Paragraph …

Rethinking Patent Fraud Enforcement In A Reform Era, Kali Murray, Dmitriy Vinarov

Marquette Intellectual Property Law Review

This Article contends that, while the defense of inequitable conduct offers an avenue to combat fraudulent patent applications, the doctrine suffers from shortcomings that spring from two compromises. First, the amorphous nature of the equitable defense prompts institutional conflict between the United States Patent and Trademark Office and the Federal Circuit. Second, by relegating enforcement solely to a patentee's market competitors, the defense fails to protect the public interest adequately. In light of these compromises, the authors propose two goals to guide current reform efforts in Congress. Initially, Congress's attempt to reform patent fraud enforcement should relieve the aforementioned institutional …

Toward A More Reliable Fact-Finder In Patent Litigation, Amy Tindell

Marquette Intellectual Property Law Review

Juries have been perceived as a blessing and a curse. They are perceived differently in different areas of law. For example, practitioners in patent law view juries in a negative light as the fact finders. In accordance with this view, Federal Courts of Appeals have begun to narrow the role of juries in patent trials. This paper follows the development of the Seventh Amendment in the patent context and its current status. This paper then proposes a system similar to peer-review to replace the traditional jury in patent trials.

Emerging Scholars Series: Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble

Marquette Intellectual Property Law Review

Injunctions enforcing a patentee's right to exclude provide an incentive to invent; however, injunctions are only effective if they can be enforced. Enforcing an injunction becomes problematic when other jurisdictions are involved, yet plaintiffs request such injunctions despite the potential inherent difficulties of cross-border enforcement. The author empirically analyzes the number and types of cross-border injunctions issued in the United States against foreign entities by discussing methods of enforcing injunctions abroad and the difficulties inherent in those methods. Comparing cases of cross-border injunctions issued by European courts, the author reviews the controversial pan-European injunction that covers not only the territory …

Not All Grace Periods Are Created Equal: Building A Grace Period From The Ground Up, Renee E. Metzler

Marquette Intellectual Property Law Review

The grace period for patent application filing is the amount of time a patent applicant has to file the application after the invention has been disclosed to the public. The rules and amount of time allowed vary greatly among countries. This comment explores the theoretical justifications for a grace period, the structural elements of a grace period, and other approaches to a grace period used in countries outside of the United States. The author proposes an ideal grace period model that would create international harmonization.

Fixing Continuing Application Practice At The Uspto, Kevin Rizzuto

Marquette Intellectual Property Law Review

Controversy surrounds continuing application practice at the United States Patent & Trademark Office. Legal scholars highlight problems with continuing application practice and ways that applicants abuse the system. Patent practitioners admit that continuing application abuses exist, yet believe that establishing limits on continuing application practice would lead to an increase in appeals to the Board of Patent Appeals and Interferences. The USPTO attributes much of its continually growing backlog to the volume of continuing applications and requests for continued examinations, and published Proposed Rules to limit continuing applications. Legal scholars and the USPTO propose solutions that are too restrictive on …

What Goes Around, Comes Around: How Indian Tribes Can Profit In The Aftermath Of Seminole Tribe And Florida Prepaid, Jeremiah A. Bryar

Marquette Intellectual Property Law Review

Of the approximate 1.5 million American Indians living in the United States only 403,714 were employed in 2001 and nearly one-third of them lived below the poverty line. This article explains that one possible solution to American Indian poverty is the creation of sovereign chartered research groups that would be shielded by tribal sovereign immunity. In patent law there are exceptions to a patent owner's ability to bring a successful suit against patent infringers. One of these exceptions is when a sovereign, such as an American Indian tribe, infringes on a patent owner's patent. Tribal sovereign immunity means that American …