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Articles 1 - 30 of 83
Full-Text Articles in Law
Copyright & Privacy - Through The Legislative Lens, 4 J. Marshall Rev. Intell. Prop. L. 266 (2005), Marybeth Peters
Copyright & Privacy - Through The Legislative Lens, 4 J. Marshall Rev. Intell. Prop. L. 266 (2005), Marybeth Peters
UIC Review of Intellectual Property Law
The Honorable Marybeth Peters, who has served since 1994 as the Register of Copyrights for the United States Copyright Office of the Library of Congress, presented a post-election report on the legislative agenda in Washington, D.C. regarding rejected, pending and future amendments to the copyright law of the United States. Register Peters also discussed the current policy role of the United States Copyright Office and several court actions that contest the constitutionality of various provisions of the copyright law.
Copyright & Privacy - Through The Privacy Lens, 4 J. Marshall Rev. Intell. Prop. L. 273 (2005), Julie E. Cohen, David E. Sorkin, Peter P. Swire
Copyright & Privacy - Through The Privacy Lens, 4 J. Marshall Rev. Intell. Prop. L. 273 (2005), Julie E. Cohen, David E. Sorkin, Peter P. Swire
UIC Review of Intellectual Property Law
What legal tools do privacy advocates have available to defend an individual’s right to privacy? How far does this right go? How should these rights be defended—or if necessary—curtailed? What is the role of Government, of the practicing bar and of academics?
"As The Federal Circuit Turns": The Supreme Court's Consideration Of Merck V. Integra And The Safe Harbor Provision, 4 J. Marshall Rev. Intell. Prop. L. 368 (2005), Blair M. Jacobs, Christina A. Ondrick
"As The Federal Circuit Turns": The Supreme Court's Consideration Of Merck V. Integra And The Safe Harbor Provision, 4 J. Marshall Rev. Intell. Prop. L. 368 (2005), Blair M. Jacobs, Christina A. Ondrick
UIC Review of Intellectual Property Law
The Hatch-Waxman Act was enacted to balance the competing interests in the pharmaceutical marketplace between brand name and generic drug manufacturers. In the twenty years since its inception, the safe harbor provision contained in § 271(e)(1), has been interpreted to provide broad protection to those involved in research activities. However, in 2003, the Federal Circuit narrowly interpreted the safe harbor provision in a move that could potentially frustrate future research and improvements on patented technologies. Merck v. Integra is currently before the United States Supreme Court, who has the challenge of unraveling the competing interests involved. In order to encourage …
Copyright & Privacy - Through The Copyright Lens, 4 J. Marshall Rev. Intell. Prop. L. 212 (2005), Sarah B. Deutsch, Roderick G. Dorman, Michael A. Geist, Hugh C. Hansen, Howard P. Knopf, Ralph Oman, Matthew J. Oppenheim, John G. Palfrey
Copyright & Privacy - Through The Copyright Lens, 4 J. Marshall Rev. Intell. Prop. L. 212 (2005), Sarah B. Deutsch, Roderick G. Dorman, Michael A. Geist, Hugh C. Hansen, Howard P. Knopf, Ralph Oman, Matthew J. Oppenheim, John G. Palfrey
UIC Review of Intellectual Property Law
This panel examines the recent litigation by the recording industry against peer-to-peer (“P2P”) users in the U.S. and Canada. How are users’ identities being obtained? Is the process working well enough or too well? What are the technical, evidentiary, procedural, privacy and substantive copyright issues in play?
Copyright & Privacy - Through The Technology Lens, 4 J. Marshall Rev. Intell. Prop. L. 242 (2005), Michael A. Geist, Doris E. Long, Leslie Ann Reis, David E. Sorkin, Fred Von Lohmann
Copyright & Privacy - Through The Technology Lens, 4 J. Marshall Rev. Intell. Prop. L. 242 (2005), Michael A. Geist, Doris E. Long, Leslie Ann Reis, David E. Sorkin, Fred Von Lohmann
UIC Review of Intellectual Property Law
How is new technology impacting on the more general question of privacy in cyberspace? Is the original notion of an expectation of anonymity on the internet still viable? Can technology pierce through the expectation of privacy even without judicial interference? Do individuals need protection from such technology? Is there technology available to protect the individual? Should these technological tools be regulated? Should the law differentiate between various types of alleged “illegal” behavior; e.g., IP infringement, defamation, possession of pornography and terrorism? Are there international standards that can assist in regulating the intersection between technology and privacy in cyberspace?
Recent Developments In Trademark Law: Confusion, Free Speech And The Question Of Use, 4 J. Marshall Rev. Intell. Prop. L. 387 (2005), Chad J. Doellinger
Recent Developments In Trademark Law: Confusion, Free Speech And The Question Of Use, 4 J. Marshall Rev. Intell. Prop. L. 387 (2005), Chad J. Doellinger
UIC Review of Intellectual Property Law
The Supreme Court’s continued trend of refining trademark rights combined with a new concern for free speech and expression brings current and unresolved trademark issues to light. The large amount of activity in the development of trademark law in 2004 has brought additional uncertainty to trademark law. This article discusses recent Supreme Court trademark jurisprudence refining trademark rights, the development of recent trademark dilution cases, the role of use in commerce as applied to internet search engines and keyword issues, and the emphasis on free speech and expression.
Transaction Costs And Antitrust Concerns In The Licensing Of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005), Richard A. Posner
Transaction Costs And Antitrust Concerns In The Licensing Of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005), Richard A. Posner
UIC Review of Intellectual Property Law
High transaction costs incurred in the licensing of intellectual property create a pressure on legal principles ranging from the fair use doctrine of copyright law to the tying doctrine in antitrust law. It appears, with some exceptions, that antitrust law is imposing excessive restrictions on the licensing of intellectual property. The effect of these restrictions, combined with the high transaction costs inherent in the licensing of intellectual property, is to prevent the maximally efficient allocation of IP resources.
Copyright & Privacy - Through The Wide-Angle Lens, 4 J. Marshall Rev. Intell. Prop. L. 285 (2005), William W. Fisher Iii, Howard P. Knopf, Fred Von Lohmann, William B.T. Mock, Marybeth Peters, R. Anthony Reese
Copyright & Privacy - Through The Wide-Angle Lens, 4 J. Marshall Rev. Intell. Prop. L. 285 (2005), William W. Fisher Iii, Howard P. Knopf, Fred Von Lohmann, William B.T. Mock, Marybeth Peters, R. Anthony Reese
UIC Review of Intellectual Property Law
Some have proposed “alternative compensation schemes” as a means of compensating copyright owners and creators for P2P activity while avoiding litigation. Some have proposed a streamlined dispute resolution system that would allow for enforcement in a manner analogous to the UDRP model. Others question whether private copying should necessarily be viewed as illegal and whether any alternative compensation scheme is viable. With all of these proposals, the question remains as to whether “alternative compensation” is really alternative.
Copyright & Privacy - Through The Political Lens, 4 J. Marshall Rev. Intell. Prop. L. 306 (2005), William W. Fisher Iii, Hugh C. Hansen, Christopher Jay Hoofnagle, Howard P. Knopf, Declan Mccullagh, Ralph Oman, Matthew J. Oppenheim
Copyright & Privacy - Through The Political Lens, 4 J. Marshall Rev. Intell. Prop. L. 306 (2005), William W. Fisher Iii, Hugh C. Hansen, Christopher Jay Hoofnagle, Howard P. Knopf, Declan Mccullagh, Ralph Oman, Matthew J. Oppenheim
UIC Review of Intellectual Property Law
Veteran beltway players discuss the politics of P2P technology and Privacy. How far can or should Congress go? Can the United States export its values or its laws in this area? Are content owners in a losing Luddite struggle? What is the role of litigators, lobbyists and legislators in this war?
Gonna Wash That Right Of Publicity Right Out Of My Hair –Life After Toney V. L’Oreal, 4 J. Marshall Rev. Intell. Prop. L. 349 (2005), Edwin F. Mcpherson
Gonna Wash That Right Of Publicity Right Out Of My Hair –Life After Toney V. L’Oreal, 4 J. Marshall Rev. Intell. Prop. L. 349 (2005), Edwin F. Mcpherson
UIC Review of Intellectual Property Law
There were very few problems with preemption of the state right of publicity by the Copyright Act; that is, until the Seventh Circuit changed everything in Toney v.L’Oreal U.S.A., Inc. This article focuses on the Toney case, the Baltimore Orioles,Inc. v. Major League Basball Players Association case that spawned Toney, and the devastating effect the law from these cases will have on the right of publicity, the entertainment industry as a whole, and many other areas of civil and criminal law, if Toney is allowed to stand.
Intellectual Property Implications In A Virtual Reality Environment, 4 J. Marshall Rev. Intell. Prop. L. 483 (2005), Timir Chheda
Intellectual Property Implications In A Virtual Reality Environment, 4 J. Marshall Rev. Intell. Prop. L. 483 (2005), Timir Chheda
UIC Review of Intellectual Property Law
What will become of intellectual property interests in a world where virtual reality is a fact of life? To ponder this question we must step back from the sophisticated judicially created tests built around a framework of policy suited for modern reality and first consider whether such policy is viable given a virtual reality environment. Only then may we consider if the tests appropriately further such policy, and if not, modify the tests accordingly. This comment considers the policy and tests implicated when copyright, trademark, and patent law pass through the looking-glass and enter the realm of virtual reality.
Reforming Patent Law Reform, 4 J. Marshall Rev. Intell. Prop. L. 336 (2005), Donald S. Chisum
Reforming Patent Law Reform, 4 J. Marshall Rev. Intell. Prop. L. 336 (2005), Donald S. Chisum
UIC Review of Intellectual Property Law
The current proposals to change the patent laws are described by proponents as patent law “reform.” In the 215 year history of the United States patent system, Congress has rarely purported to “reform” the system. Indeed, I am not sure that it has ever done so since the 1836 Act—or even since the 1793 Act. If we are to have “reform,” Congress should reform the system for the better of all concerned according to neutral principles.
Placing The Burden Back Where It Belongs: A Proposal To Eliminate The Affirmative Duty From Willful Infringement Analyses, 4 J. Marshall Rev. Intell. Prop. L. 509 (2005), Kevin J. Kelly
UIC Review of Intellectual Property Law
In order to further the objective of the patent system and maximize the public’s incentive to innovate, it is imperative that the patent laws maintain a balance between the interests of patent owners in excluding others from their patents and the interests of society in the continual progress of technology. The current law in willful infringement analysis upsets this balance with the affirmative duty of due care, which shifts the burden of proof in patent infringement suits from the plaintiff to the alleged infringer. The affirmative duty places a heavy burden on the public and is inconsistent with various common …
Congress Wants To Give The Riaa Control Of Your Ipod: How The Induce Act Chills Innovation And Abrogates Sony, 4 J. Marshall Rev. Intell. Prop. L. 534 (2005), Michael Raucci
UIC Review of Intellectual Property Law
The addition of “active inducement” to the Copyright Act would compliment the doctrine of contributory liability by punishing those who actively encourage copyright infringement. Actively inducing infringement can include advertising an infringing use or other affirmative acts. Therefore, active inducement provides a technology-neutral standard that would not look to punish bad technology but rather bad actions by the technology distributor. In contrast, the reasonable person standard of the Inducing Infringement of Copyright Act of 2004 (“Induce Act”) permits an inappropriate extension of the exclusive rights given to copyright holders by lowering the threshold for litigation. Consequently, the Induce Act improperly …
University Of Rochester V. G.D. Searle & Co.: Writing On The Wall, 4 J. Marshall Rev. Intell. Prop. L. 406 (2005), N. Scott Pierce
University Of Rochester V. G.D. Searle & Co.: Writing On The Wall, 4 J. Marshall Rev. Intell. Prop. L. 406 (2005), N. Scott Pierce
UIC Review of Intellectual Property Law
In patent law, the first paragraph of 35 U.S.C. § 112 is currently interpreted to include a written description requirement that is distinct from the requirement of enabling a person skilled in the art to make and use an invention. However, analyses of patent specifications under the “written description requirement” have relied on determinations of whether one skilled in the art would comprehend the scope of the claimed invention in view of the description provided, in effect continuing use of enablement as the statutory threshold for description purposes. The Court of Appeals for the Federal Circuit in University of Rochester …
China's Struggle To Maintain Economic Viability While Enforcing International And Domestic Intellectual Property Rights, 4 J. Marshall Rev. Intell. Prop. L. 608 (2005), Randal S. Alexander
China's Struggle To Maintain Economic Viability While Enforcing International And Domestic Intellectual Property Rights, 4 J. Marshall Rev. Intell. Prop. L. 608 (2005), Randal S. Alexander
UIC Review of Intellectual Property Law
The development of global intellectual property rights (“IPRs”) can lead to complex issues regarding conformity with international standards of IP protection and enforcement. Although each country willing to become a WTO signatory is tasked with the development of such a regime, each country’s domestic affairs and economic survival competes with the burden of adhering to those international standards. This struggle provides the potential for many countries to confuse the boundaries of protection and create a fog of marginal infringement. In China, this fog is heavier because of local protectionism and judicial disincentives to enforce IPRs.
Abuse Of Public Use? Exploring The Smithkline V. Apotex Decision And The Future Of Public Use, 4 J. Marshall Rev. Intell. Prop. L. 559 (2005), Artem N. Sokolov
Abuse Of Public Use? Exploring The Smithkline V. Apotex Decision And The Future Of Public Use, 4 J. Marshall Rev. Intell. Prop. L. 559 (2005), Artem N. Sokolov
UIC Review of Intellectual Property Law
In SmithKline Beecham Corp. v. Apotx Corp., the court incorrectly applied the statutory public use bar and held the clinical trials did not constitute an experimental use. This ruling set the bar too high. Applying a narrow construction of the law, the CAFC invalidated a claim in a clear case of experimental use. The decision not only misapplied the precedent defining an “inherent” feature of the invention, but also essentially eliminated the need for applying the policies that underlie and define the public use bar under 35 U.S.C. § 102(b).
Is The Federal Circuit Ready To Accept Plenary Authority For Patent Appeals?, 4 J. Marshall Rev. Intell. Prop. L. 583 (2005), Meredith Martin Addy
Is The Federal Circuit Ready To Accept Plenary Authority For Patent Appeals?, 4 J. Marshall Rev. Intell. Prop. L. 583 (2005), Meredith Martin Addy
UIC Review of Intellectual Property Law
Congress formed the U.S. Court of Appeals for the Federal Circuit in 1982 in part to improve uniformity in the interpretation of patent law and to eliminate forum shopping. However, in 2002, the Federal Circuit’s ability to achieve that goal was reduced when the U.S. Supreme Court, in Holmes Group v. Vornado, held that the Federal Circuit would not have jurisdiction in cases where a federal patent law issue arises only in a responsive pleading. Many commentators have argued that the Holmes decision runs afoul of the congressional mandate in forming the Federal Circuit. With the hope of addressing this …
Pondering A “Baffling” Situation: The “Reconstruction” Of Claim Construction, 4 J. Marshall Rev. Intell. Prop. L. 623 (2005), Karen C. Mitch
Pondering A “Baffling” Situation: The “Reconstruction” Of Claim Construction, 4 J. Marshall Rev. Intell. Prop. L. 623 (2005), Karen C. Mitch
UIC Review of Intellectual Property Law
Through an iterative use of the ordinary dictionary, claim construction would be more simple, cost effective and efficient in serving the public notice function of the claim. Since the decision in Markman, two divergent methods of claim construction have emerged; one referring to dictionary definitions first, the other referring to parts of the patent such as the specification first. Due to the confusion and differing outcomes the two methods bring about, there came a call by the United States Court of Appeals for the Federal Circuit for clarification. The recent en banc decision in Phillips reverted claim interpretation back to …
The Third Door Is Off The Hinges: A Prospective Study On The Effects Of The Create Act Against Federal Patent Policies, 4 J. Marshall Rev. Intell. Prop. L. 597 (2005), Shane M. Popp
UIC Review of Intellectual Property Law
The CREATE Act has amended § 103 of the Patent Act to expand the definition of common ownership such that a claimed invention is deemed to be commonly owned with other subject matter when the two arise from the same “joint research agreement.” With the CREATE Act, Congress intended to promote research among inventive entities, but instead, Congress has relaxed the conditions for patentability to the point where a contract can circumvent an obviousness inquiry.
Is The Cure Worse Than The Disease? An Overview Of The Patent Reform Act Of 2005, 5 J. Marshall Rev. Intell. Prop. L. 55 (2005), James G. Mcewen
Is The Cure Worse Than The Disease? An Overview Of The Patent Reform Act Of 2005, 5 J. Marshall Rev. Intell. Prop. L. 55 (2005), James G. Mcewen
UIC Review of Intellectual Property Law
As a result of pressures from various groups and issues surrounding the current patent system, representative Lamar Smith introduced a bill which overhauls multiple aspects of patent practice. The patent reform act is designed to please or compromise between various industry groups while at the same time invigorating the patent system. Specifically, the Patent Reform Act proposes changes to the procedures for filing application, how the applications are filed and even how patents are enforced. In addition to the major publicized changes the Patent Reform Act proposes other alterations that, while receiving less notice, have just as much practical effect. …
Collateral Damage: The Effect Of The Database Debate On Other Acts Of Congress, 5 J. Marshall Rev. Intell. Prop. L. 78 (2005), Christopher A. Mohr
Collateral Damage: The Effect Of The Database Debate On Other Acts Of Congress, 5 J. Marshall Rev. Intell. Prop. L. 78 (2005), Christopher A. Mohr
UIC Review of Intellectual Property Law
Under the reasoning in Unied States v. Martingon, declaring the federal bootlegging statute unconstitutional, databases, as “non-writings,” could not be protected under Congress’s copyright power or commerce power. In other words, Congress’s power under Article I, Section 8, Clause 8 serves to limit its ability to act under Article I, Section 8, Clause 3. Marignon’s rationale raises questions about a variety of prospective and existing legislation that protects “non-writings” for an unlimited time, such as the trademark dilution statute. This article examines the merits of this contention, arguing that the manner in which the Supreme Court has handled overlapping Article …
Fifth Avenue And The Patent Lawyer: Strategies For Using Design Patents To Increase The Value Of Fashion And Luxury Goods Companies, 5 J. Marshall Rev. Intell. Prop. L. 40 (2005), Scott D. Locke
UIC Review of Intellectual Property Law
Design patents occupy a peculiar niche in intellectual property law. For instance, they are different from copyrights in that an accused infringer has no defense of independent creation, different from utility patents in that there is no prerequisite of a useful function, and different from trade dress in that there is no issue of secondary meaning. Design patents also contain only one claim, which makes the applicant’s drafting task particularly challenging—she must strike a delicate balance between claiming broad protection and establishing novelty. Furthermore, in litigation, the design patent plaintiff must satisfy two tests of infringement: the ordinary observer and …
Patent Tying Agreements: Presumptively Illegal?, 5 J. Marshall Rev. Intell. Prop. L. 94 (2005), Alison K. Hayden
Patent Tying Agreements: Presumptively Illegal?, 5 J. Marshall Rev. Intell. Prop. L. 94 (2005), Alison K. Hayden
UIC Review of Intellectual Property Law
On January 25, 2005, the CAFC decided the case of Independent Ink, Inc. v. Illinois Tool Works, Inc., holding that market power will be presumed in a tying agreement whenever a tying product is patented. This rule puts patent holders at a disadvantage, and will increase the amount of antitrust lawsuits brought against patent holders and holders of other exclusive intellectual property rights. Indeed, this rule conflicts with the intended effect of antitrust law. This comment proposes that tying agreements involving a patented product be evaluated the same way as all other tying agreements, and that the presumption of market …
Claim Preambles And The Unassailable Patent Claim, 5 J. Marshall Rev. Intell. Prop. L. 121 (2005), Kyle D. Petaja
Claim Preambles And The Unassailable Patent Claim, 5 J. Marshall Rev. Intell. Prop. L. 121 (2005), Kyle D. Petaja
UIC Review of Intellectual Property Law
In order to diminish the extensive confusion surrounding claim preambles, one must not consider what a preamble should do; rather, it is helpful to consider what a preamble should not do. Traditionally, a preamble is defined as an introduction to a statute or deed stating the document’s basis, purpose, aim, justification, and objective. However, in patents, a claim preamble does not serve this purpose. While a preamble undeniably functions as an introduction to the rest of the claim, that claim is limited in scope and therefore, so too, is the preamble. The basis, purpose, aim, justification, and objective of the …
To Be Presumed Or Not To Be Presumed . . . That Is The Enablement Question, 5 J. Marshall Rev. Intell. Prop. L. 140 (2005), Kristina A. Walker
To Be Presumed Or Not To Be Presumed . . . That Is The Enablement Question, 5 J. Marshall Rev. Intell. Prop. L. 140 (2005), Kristina A. Walker
UIC Review of Intellectual Property Law
In 2003, the Federal Circuit in Amgen Inc. v. Hoechst Marion Roussel, Inc. placed the burden of proving a prior art patent’s § 112 nonenablement on the patentee instead of the accused infringer. The patentee even bears this burden when the unclaimed subject matter is asserted to anticipate the patent at issue. This comment focuses on three questions that were created by the decision in Amgen. First, is material in a printed publication equivalent to unclaimed material in a patent? Second, is the holding in Amgn based on a false premise because it may accord a presumption of § 112 …
How We Lost Our Moral Rights And The Door Closed On Non-Economic Values In Copyright, 5 J. Marshall Rev. Intell. Prop. L. 1 (2005), Susan P. Liemer
How We Lost Our Moral Rights And The Door Closed On Non-Economic Values In Copyright, 5 J. Marshall Rev. Intell. Prop. L. 1 (2005), Susan P. Liemer
UIC Review of Intellectual Property Law
The Visual Artists Rights Act (“VARA”) is a piece of modern legislation preceded by a rich history, with a significant gap. As early as the 1400’s, patents were offered as economic incentive to develop new processes in the trades and applied arts. By the 1700’s, the Statute of Anne became the first statute to protect the literary work of individual creators. The Engravers’ Act of 1735 soon followed, expanding this protection to include the first works of visual art and providing the precursor to the modern right of integrity. Millar v. Taylor was the landmark case that alluded to moral …
No Place To Hide, 24 J. Marshall J. Computer & Info. L. 35 (2005), Robert J. O'Harrow Jr.
No Place To Hide, 24 J. Marshall J. Computer & Info. L. 35 (2005), Robert J. O'Harrow Jr.
UIC John Marshall Journal of Information Technology & Privacy Law
Robert O’Harrow, Jr., a reporter on the financial and investigative team of the Washington Post, recipient of the 2003 Carnegie Melon and Cyber Security Reporting Award, and Pulitzer Prize finalist, lectures on topics from his recent book, No Place to Hide. He discusses how data mining began as a way for marketing companies to gain information about consumers and, as technology evolved, developed into a way for the government to monitor its citizens. O’Harrow contends that since the government is using private companies to collect this data, it skirts regulation and accountability for privacy infringements. After discussing the problems concerning …
The Failure Of The Rule Of Law In Cyberspace?: Reorienting The Normative Debate On Borders And Territorial Sovereignty, 24 J. Marshall J. Computer & Info. L. 1 (2005), H. Brian Holland
UIC John Marshall Journal of Information Technology & Privacy Law
The purpose of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. The article begins by outlining the Johnson-Post-Goldsmith debate which addressed the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. The debate focused primarily on two areas of disagreement: First, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the …
Do We Really Have No Place To Hide?, 24 J. Marshall J. Computer & Info. L. 57 (2005), Matthew Hector
Do We Really Have No Place To Hide?, 24 J. Marshall J. Computer & Info. L. 57 (2005), Matthew Hector
UIC John Marshall Journal of Information Technology & Privacy Law
This article is a book review of No Place to Hide, by Robert O’Harrow. The author begins his analysis of No Place to Hide by addressing concerns raised by O’Harrow regarding the balance between the private data aggregators like ChoicePoint and Acxiom and government investigators in reference to the goal of informational privacy policies. The author then goes into a detailed discussion of O’Harrow’s examination of the reasons for drafting the U.S. Patriot Act. Finally, the author discusses the central issue raised in No Place to Hide, and that is the unlimited ability to access certain information on the Internet …