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Articles 61 - 87 of 87
Full-Text Articles in Law
Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi
Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi
UIC Law Review
No abstract provided.
The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski
The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski
UIC Review of Intellectual Property Law
Section 337 of the Tariff Act of 1930 makes unlawful, specifically, the importation of products that infringe intellectual property rights. The U.S. International Trade Commission (“ITC”) is the forum in which all section 337 proceedings are adjudicated and, within the ITC, the Office of Administrative Law Judges handles all these proceedings. Section 337 cases can be exceedingly complex and technical, and the Administrative Law Judges (“ALJ”) are the initial triers of fact, administrators, and decision makers in every case. Thus, the amount of work that the ALJs—along with their staff—must meet to see these cases to completion can be substantial. …
The Distinctive Characteristics Of Section 337, 8 J. Marshall Rev. Intell. Prop. L. 231 (2009), Jay H. Reiziss
The Distinctive Characteristics Of Section 337, 8 J. Marshall Rev. Intell. Prop. L. 231 (2009), Jay H. Reiziss
UIC Review of Intellectual Property Law
In an investigation by the International Trade Commission (“ITC” or “Commission”) under Section 337 of the Tariff Act of 1930 (“Section 337”) a complainant must satisfy two unique statutory criteria. First, a complainant must establish that the ITC has jurisdiction, usually by showing importation of an accused product. Second, a complainant must demonstrate that a domestic industry exists or is in the process of being established. A practitioner can be assured that the ITC’s jurisdiction is expansive and reaches foreign-based activities that affect U.S. commerce. Such actions can involve any unfair act and can be brought regardless of whether personal …
Post-Litigation Enforcement Of Remedial Orders Issued By The U.S. International Trade Commission In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 248 (2009), Merritt R. Blakeslee
Post-Litigation Enforcement Of Remedial Orders Issued By The U.S. International Trade Commission In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 248 (2009), Merritt R. Blakeslee
UIC Review of Intellectual Property Law
There is a common misperception that enforcement of International Trade Commission (“ITC”) remedial orders is automatic and self implementing. In reality, such remedial orders are not self-implementing, are less-than-perfect enforcement tools, and their effective enforcement carries with it a number of practical difficulties. This paper explores the realities of enforcing the ITC’s remedial orders – exclusion orders, consent orders, and cease-and-desist orders – with the goal of giving both complainants and respondents a heightened appreciation of the tactics and strategies that can be effectively deployed following the conclusion of a Section 337 investigation and the issuance of one or more …
Gray Market Trademark Infringement Actions At The U.S. International Trade Commission: The Benefits Of The Forum And Analysis Of Relevant Cases, 8 J. Marshall Rev. Intell. Prop. L. 271 (2009), Joseph H. Heckendorn, Lyle B. Vander Schaaf
Gray Market Trademark Infringement Actions At The U.S. International Trade Commission: The Benefits Of The Forum And Analysis Of Relevant Cases, 8 J. Marshall Rev. Intell. Prop. L. 271 (2009), Joseph H. Heckendorn, Lyle B. Vander Schaaf
UIC Review of Intellectual Property Law
Trademark owners continue to enforce their trademarks against imports of gray market goods using Section 337 of the Tariff Act of 1930. In comparison to the federal court alternative, the International Trade Commission (“ITC”) offers a number of distinct advantages. In addition, ITC decisions in In re Certain Agricultural Vehicles and Components Thereof and In re Certain Hydraulic Excavators and Components Thereof have clarified what is required to enforce trademarks at the ITC. Trademark owners should heed the recent ITC decisions in deciding how to curb imports of infringing gray market goods.
The U.S. International Trade Commission's Growing Role In The Global Economy, 8 J. Marshall Rev. Intell. Prop. L. 290 (2009), Patricia Larios
The U.S. International Trade Commission's Growing Role In The Global Economy, 8 J. Marshall Rev. Intell. Prop. L. 290 (2009), Patricia Larios
UIC Review of Intellectual Property Law
The widespread offshoring of manufacturing operations has created dramatic efficiencies and meaningful cost savings for many U.S. businesses. But as an unintended consequence, the move to foreign manufacturing also has created challenges to the U.S. patent system and its ability to protect American businesses from infringing competition. U.S. District Courts are frequently an inadequate forum for litigating patent infringement suits involving an accused device manufactured abroad because of the difficulties associated with obtaining jurisdiction and proving infringement. Patent holders faced with such a situation, however, are not left without recourse. This article explores the different enforcement mechanisms available in the …
The New "Extra-Ordinary" Observer Test For Design Patent Infringement–On A Crash Course With The Supreme Court's Precedent In Gorham V. White, 8 J. Marshall Rev. Intell. Prop. L. 354 (2009), Christopher V. Carani
The New "Extra-Ordinary" Observer Test For Design Patent Infringement–On A Crash Course With The Supreme Court's Precedent In Gorham V. White, 8 J. Marshall Rev. Intell. Prop. L. 354 (2009), Christopher V. Carani
UIC Review of Intellectual Property Law
Over one hundred and thirty-five years ago the U.S. Supreme Court, in Gorham v. White, laid down the test for design patent infringement called the “ordinary observer” test—one that is administered through the eyes of men generally. It has remained the test ever since. Recently, in Arminak & Assoc., Inc. v. Saint-Gobain Calmar, Inc and Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit has improperly replaced this “ordinary observer” test with an “extra-ordinary observer” test—one that uses persons who are versed in the trade. In order to bring design patent jurisprudence in line with the U.S. Supreme Court’s jurisprudence …
Do As We Say, Not As We Do: A Study Of The Well-Known Marks Doctrine In The United States, 8 J. Marshall Rev. Intell. Prop. L. 412 (2009), Andrew M. Cook
Do As We Say, Not As We Do: A Study Of The Well-Known Marks Doctrine In The United States, 8 J. Marshall Rev. Intell. Prop. L. 412 (2009), Andrew M. Cook
UIC Review of Intellectual Property Law
Treaties such as the Paris Convention and the TRIPS Agreement protect well-known marks around the world, but there is currently uncertainty as to whether these marks can be protected in the United States. While a signatory to those treaties, recent decisions in the Second and Ninth Circuits leave the circuits split on whether foreign well-known marks are protectable within the United States. Without a circuit harmonization, the United States remains in a hypocritical position, demanding treaty compliance from other nations while failing to meet its treaty obligations. The uncertainty is efficiently and effectively resolved with a statutory amendment to section …
Fender Bender: 3d Computer Modeling Of Commercial Objects And The Meshwerks V. Toyota Decision, 8 J. Marshall Rev. Intell. Prop. L. 429 (2009), Andrew C. Landsman
Fender Bender: 3d Computer Modeling Of Commercial Objects And The Meshwerks V. Toyota Decision, 8 J. Marshall Rev. Intell. Prop. L. 429 (2009), Andrew C. Landsman
UIC Review of Intellectual Property Law
The Ninth Circuit Court of Appeals established a standard of originality for three-dimensional wireframe computer models for purposes of copyright protection in Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. The court applied the standard of originality used by courts when assessing the originality of photographs. In doing so, the court created a test for wireframes that precludes any wireframe from acquiring copyright protection. This comment proposes that courts reconsider the holding in Meshwerks and treat wireframes as sculptures rather than photographs, which would allow wireframes to be copyrightable.
Proveris Scientific Corp. V. Innovasystems, Inc. Sinks Safe Harbor Protection For Research Tools, 8 J. Marshall Rev. Intell. Prop. L. 452 (2009), Erin M. Mckibben
Proveris Scientific Corp. V. Innovasystems, Inc. Sinks Safe Harbor Protection For Research Tools, 8 J. Marshall Rev. Intell. Prop. L. 452 (2009), Erin M. Mckibben
UIC Review of Intellectual Property Law
The use of research tools is critical for pharmaceutical companies to conduct timely and efficient research in the development of new drugs. Traditionally, the use of all patented inventions during drug development that are reasonably related to submission of information to the Food and Drug Administration for regulatory review has been protected under the section 271(e)(1) safe harbor provision. Recently, the Federal Circuit narrowed the scope of the safe harbor provision excluding the use of certain patented research tools. The effect of this decision on research tools may negatively impact the public by raising the cost of pharmaceutical companies’ research …
The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia
The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia
UIC Review of Intellectual Property Law
On September 16, 2008, Associate Justice of the Supreme Court of the United States Antonin Scalia delivered a speech on the legacy of the late Howard T. Markey. The speech was given at The John Marshall Law School’s The Legacy of Judge Howard T. Markey Symposium, held at the law school in Chicago, Illinois. The text of the speech appears here.
Inequitable Conduct, Gross Negligence And The Kingsdown Decision, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 18 (2009), Jim Carmichael, Cameron Weiffenbach
Inequitable Conduct, Gross Negligence And The Kingsdown Decision, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 18 (2009), Jim Carmichael, Cameron Weiffenbach
UIC Review of Intellectual Property Law
Rule 56 was promulgated in 1948 to address inequitable conduct and fraud before the United States Patent Office in response to major Supreme Court decisions in the 1930’s and 1940’s. Further development of rule continued through decisions and amendments into the 1980’s. Judge Markey authored several decisions at the Federal Circuit addressing the standard of intent required to find inequitable conduct in the 1980’s. The impact of these decisions culminated in his Kingsdown Medical Consultants, Ltd v. Hollister, Inc. opinion resulting in a 1992 amendment to Rule 56. This article analyzes the development of Rule 56 and Judge Markey’s influence …
Four Opinions By Chief Judge Markey On Limiting Patent Enforcement, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 34 (2009), Joseph R. Re
UIC Review of Intellectual Property Law
Many commentators have characterized Judge Markey and the United States Court of Appeals for the Federal Circuit as being biased in favor of patent holders. These four opinions exemplify Judge Markey’s support of a strong patent system, a system that must include strong defenses against parties that have either wrongly obtained or misused patent rights.
The Role Of Juries In Managing Patent Enforcement: Judge Howard Markey's Opinions And Writings, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 41 (2009), John R. Alison
UIC Review of Intellectual Property Law
In the 1970s, a trial by jury was rare in patent cases. By the time Chief Judge Markey left the United States Court of Appeals for the Federal Circuit in 1989, jury trials had become the norm. Throughout Judge Markey’s time on the bench he exerted great energy to promote, define, and improve the role of law juries in patent cases. This speech by Judge Markey’s former law clerk, John R. Alison, discusses the three Markey Principles. The first principle of Judge Markey is the fundamental right to a jury trial in patent cases. Second, proceedings in jury trials for …
Money For Nothing And Music For Free? Why The Riaa Should Continue To Sue Illegal File-Sharers, 9 J. Marshall Rev. Intell. Prop. L. 1 (2009), William Henslee
Money For Nothing And Music For Free? Why The Riaa Should Continue To Sue Illegal File-Sharers, 9 J. Marshall Rev. Intell. Prop. L. 1 (2009), William Henslee
UIC Review of Intellectual Property Law
The Recording Industry Association of America (―RIAA) has sued over 35,000 people for illegal file-sharing music, or uploading and downloading music. The RIAA has sued anyone under its ―making available‖ theory, or anyone who offers to distribute copyrighted music without the owner‘s consent. However, the United States Circuit Courts of Appeals are split on whether copyright infringement occurs when a file is ―made available‖ or when there is actual dissemination of a file. Due to this split, the RIAA has negotiated deals with internet service providers to penalize individuals who illegally share files. This article analyzes a recent decision, Capitol …
Open Borders, Intellectual Property & Federal Criminal Trade Secret Law, 9 J. Marshall Rev. Intell. Prop. L. 24 (2009), Shubha Ghosh
Open Borders, Intellectual Property & Federal Criminal Trade Secret Law, 9 J. Marshall Rev. Intell. Prop. L. 24 (2009), Shubha Ghosh
UIC Review of Intellectual Property Law
Many scholars have demonstrated that labor mobility between firms has lead to the economic success of Silicon Valley. California‘s policy against enforcing covenants not to compete has been shown to provide the legal infrastructure for high labor mobility. Does the argument extend to mobility of skilled labor across national borders? This Article addresses that question in the context of the Economic Espionage Act of 1996, the first federal criminal trade secret law in the United States. By analyzing the scholarly literature and the case law under the Act, the author presents a theoretical framework for assessing the Act based on …
Is Bilski Likely The Final Word On Tax Strategy Patents? Coherence Matters, 9 J. Marshall Rev. Intell. Prop. L. 110 (2009), Linda M. Beale
Is Bilski Likely The Final Word On Tax Strategy Patents? Coherence Matters, 9 J. Marshall Rev. Intell. Prop. L. 110 (2009), Linda M. Beale
UIC Review of Intellectual Property Law
The Supreme Court‘s grant of certiorari in In re Bilski presents an opportunity to lay to rest the patent eligibility of tax strategies. A comparison of the core values of the patent and tax systems reveals fundamental conflicts that have gained the attention of tax practitioners, bar associations and Congress. These conflicts are identified by tracing both the development of patentable subject matter and the policy goals of the tax system. This article addresses the future of tax strategy patents in light of In re Bilski and analyzes the potential for the Court to deliver guidance that makes clear the …
Embedded Advertising: Your Rights In The Tivo Era, 9 J. Marshall Rev. Intell. Prop. L. 146 (2009), Ann K. Hagerty
Embedded Advertising: Your Rights In The Tivo Era, 9 J. Marshall Rev. Intell. Prop. L. 146 (2009), Ann K. Hagerty
UIC Review of Intellectual Property Law
As DVR usage rapidly increases, embedded advertising is evolving and blurring the line for the viewing public between advertising and content. The FCC responded by seeking public commentary and guidance on the regulations governing embedded advertising. The comments the FCC received revealed a heated debate between media industry advocates and those who seek to protect consumer interests. The recent increase in the practice of embedded advertising has only intensified this debate. A balance must be struck between the interests of the media industry and the viewing public. To do so, the FCC must adopt a regulatory scheme that commands viewers’ …
Magazine Publishers Exhale: Exploiting Collective Works After Greenberg, 9 J. Marshall Rev. Intell. Prop. L. 161 (2009), Jason Koransky
Magazine Publishers Exhale: Exploiting Collective Works After Greenberg, 9 J. Marshall Rev. Intell. Prop. L. 161 (2009), Jason Koransky
UIC Review of Intellectual Property Law
The National Geographic Society simply intended to offer an innovative digital product to consumers—its complete archives in digital format—when it released The Complete National Geographic CD-ROM. The CD-ROM, however, had a much different impact as well. The litigation that followed its release, in particular Greenberg v. National Geographic Society, offered publishers‘ some clarity in regard to the scope of section 201(c) rights to reproduce collective works in digital formats. Greenberg, however, did not address the full range of copyright issues that publishers and freelance contributors alike encounter in reproducing collective works in new digital formats brought about by advances in …
The Long And Winding Road To The Google Books Settlement, 9 J. Marshall Rev. Intell. Prop. L. 227 (2009), Jonathan Band
The Long And Winding Road To The Google Books Settlement, 9 J. Marshall Rev. Intell. Prop. L. 227 (2009), Jonathan Band
UIC Review of Intellectual Property Law
In its Library Project, Google is scanning millions of books from the world’s leading research libraries to include in a searchable database. This scanning has occurred without the copyright owners’ authorization, leading to the class action copyright infringement lawsuit, Authors Guild v. Google, Inc. The central legal issue in the litigation is whether copyright law’s fair use doctrine provides Google with a defense against the authors’ claims. Ultimately, the parties reached a settlement. The proposed Settlement Agreement is an extremely complex document which, if approved by the court, will govern the future of the Google Library Project. It creates a …
Defusing The “Atomic Bomb” Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckesson Et Al., 9 J. Marshall Rev. Intell. Prop. L. 330 (2009), Sean M. O’Connor
UIC Review of Intellectual Property Law
The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office’s Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then. This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of materiality and …
Preferred Embodiments In Patents, 9 J. Marshall Rev. Intell. Prop. L. 398 (2009), Tom Brody
Preferred Embodiments In Patents, 9 J. Marshall Rev. Intell. Prop. L. 398 (2009), Tom Brody
UIC Review of Intellectual Property Law
It is a tradition in patent drafting to refer to one or more examples as “preferred” or as a “preferred embodiment.” While these “preferred embodiments” reside in the specification, they can influence the interpretation of the claims. The role of preferred embodiments in claim construction was the issue in two cases, Laitram Corp. v. Cambridge Wire Cloth Co. and Vitronics Corp. v. Conceptronic, Inc. These cases represent two different lineages of the case law that refer to preferred embodiments, where application of these cases broadens (or prevents narrowing of) claim scope. Laitram warns against confining the claim to a specific …
The Author’S Rights In Literary And Artistic Works, 9 J. Marshall Rev. Intell. Prop. L. 453 (2009), Alina Ng
The Author’S Rights In Literary And Artistic Works, 9 J. Marshall Rev. Intell. Prop. L. 453 (2009), Alina Ng
UIC Review of Intellectual Property Law
Authorship and creativity are products of authentic human expression that the law must encourage in order for works to be produced. The commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand. Focus on popular demand may, however, result in works that lack social, educational and cultural value or utility. Natural law philosophy suggests that the copyright system should be an ethical and moral institution that would, in turn, promote the progress of society through authentic authorship. While economic incentives offer authors market rewards that may facilitate the creation and dissemination, economic …
Social Networking And Blogging: The New Legal Frontier, 9 J. Marshall Rev. Intell. Prop. L. 500 (2009), Robert Newman, Liisa Thomas
Social Networking And Blogging: The New Legal Frontier, 9 J. Marshall Rev. Intell. Prop. L. 500 (2009), Robert Newman, Liisa Thomas
UIC Review of Intellectual Property Law
Improvements in communication technology have effectively made the world a smaller place. As businesses attempt to exploit these new technological improvements to better communicate their messages to their clients, these same improvements continue to raise new and difficult legal issues related to fair trade practices, privacy, and freedom of speech. This article identifies current legal developments related to advertising in the online world and analyzes the actions taken to resolve these new and difficult legal issues within the framework of United States federal and state law and private industry-specific self-governance.
Trademark Use As Keywords: A Comparative Look At Trademark Use As Keywords In Paid Search And Digital Public Performance Rights For Sound Recordings, 9 J. Marshall Rev. Intell. Prop. L. 553 (2009), Katie Pimentel
UIC Review of Intellectual Property Law
A vigorous debate has emerged regarding the expansion of trademark owners’ rights to have exclusive control over their marks in the paid search environment. A common practice in paid search is for advertisers to purchase other companies’ trademarks as keywords for search engine results. Comparing the similarities between the current struggles concerning trademark use as paid search keywords to the evolution of the right to a digital public performance for sound recording owners, this comment proposes a model that allows purchasers of other entities’ trademarks to use those marks in a Congressionally regulated fashion in a similar way section 114 …
Declaratory Judgment Jurisdiction In Patent Disputes: A Rock And A Hard Place, 9 J. Marshall Rev. Intell. Prop. L. 583 (2009), Jonathan S. Pope
Declaratory Judgment Jurisdiction In Patent Disputes: A Rock And A Hard Place, 9 J. Marshall Rev. Intell. Prop. L. 583 (2009), Jonathan S. Pope
UIC Review of Intellectual Property Law
In 2007, the United States Supreme Court invalidated the Federal Circuit’s test for declaratory judgment jurisdiction explaining that the law requires an “all circumstances” approach and that the “reasonable apprehension of suit” test is not sufficient. The Federal Circuit’s subsequent applications of the “all circumstances” test show that a potential infringer is likely to sustain jurisdiction where the potential infringer and the patentee have merely communicated their adverse positions to one another. On the other hand, the Federal Circuit is not likely to find jurisdiction where the patent-holder has not communicated, or has vaguely communicated, its position to the potential …
Couture Copyright: Copyright Protection Fitting For Fashion Design, 9 J. Marshall Rev. Intell. Prop. L. 602 (2009), Aleksandra Spevacek
Couture Copyright: Copyright Protection Fitting For Fashion Design, 9 J. Marshall Rev. Intell. Prop. L. 602 (2009), Aleksandra Spevacek
UIC Review of Intellectual Property Law
The fashion industry does not need special, protective legislation. Laws are already in place that can serve to aid in the protection of fashion design. Legislation has extended copyright protection to architectural plans and their associated structures. This extension was based on rationale that is applicable, without revision, to fashion design. The practice of denying protection to fashion design is unsupported by law. In fact, courts already have the means to grant protection to fashion design. First, the court can grant protection through analogy to architectural works. Second, the court can clarify the separability test for utilitarian designs—a test which …