Law Commons^™

Vested Patents And Equal Justice,, Adam J. Macleod

Faculty Articles

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law 's interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure …

A Comparative Study Of Trademarks: Usmca (U.S.-Mexico-Canada Agreement) And Nafta (North American Free Trade Agreement), Roberto Rosas

Faculty Articles

The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across …

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming

Foreign Patent Decisions And Harmonization: A View Of The Presumption Against Giving Foreign Patent Decisions Preclusive Effect In United States Proceedings In Light Of Patent Law International Harmonization, Roberto Rosas

Faculty Articles

Where there is a United States patent, there are also likely multiple foreign counterpart patents. Armed with a patent, a holder can then move to stop others from infringing on his invention, and more often than not, the defendant will argue that the United States patent is invalid, often citing foreign decisions and proceedings in support of that claim. Given the territorial nature of patents and the fact that countries have different requirements and standards for granting patents, United States courts have applied a presumption against giving preclusive effect to foreign patent decisions. The courts, however, have made clear that …

Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik

St. Mary's Journal on Legal Malpractice & Ethics

In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.

International Legal Protection Of Trademarks In China, Robert H. Hu

Faculty Articles

This article addresses major trademark-related international regimes in which China participates. The article discusses the Chinese obligations under certain international treaties and agreements, both multilateral and bilateral, and use some Chinese court decisions to illustrate how these obligations are fulfilled in its judicial practice. Finally, the article provides an assessment of the effectiveness of these international regimes in China and offers observations on future development in protection through better enforcement. Three arguments are made: (1) International trademark law is taking roots in China; (2) China is taking its international obligations to protect trademarks seriously, and it has achieved much in …

Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively

St. Mary's Law Journal

Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA …

Unintentional Franchising., Mark H. Miller

St. Mary's Law Journal

The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman

St. Mary's Law Journal

The doctrine of equivalents, which Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. threatens to overturn, is an equitable doctrine and should therefore provide patentees and competitors equal and fair protection. Prior to Festo, the Federal Circuit used two approaches: the complete bar rule and the flexible bar rule. Under the complete bar rule, the author must completely copy the patented art for infringement to occur, this is otherwise known as literal infringement. In contrast, under the flexible bar rule, infringement can occur if the product is closely related to the prior art. Federal Circuits have officially adopted the complete …

Intellectual Property Pirates: Congress Raises The Stakes In The Modern Battle To Protect Copyrights And Safeguard The United States Economy Comment., Timothy D. Howell

St. Mary's Law Journal

Intellectual property pirates menace the industry by hijacking audio recordings, movies, television broadcasts, and software—posing an economic threat and accounting for billions of dollars in losses annually. This Comment examines legislative attempts to combat information piracy through criminalization of copyright infringement—focusing on the proposed Criminal Copyright Improvement Act of 1995 (Improvement Act). The Improvement Act contemplates expansion of criminal copyright infringement law, attempting to close the legal “loophole” exposed by United States v. LaMacchia, and providing a more effective means for deterring copyright piracy. Part II of this Comment provides a historical overview of United States copyright laws and introduces …