Law Commons^™

Attorney-Client Privilege Versus The Pto's Duty Of Candor: Resolving The Clash In Simultaneous Patent Representations, Todd M. Becker

Washington Law Review

Patent attorneys play dual roles: they are simultaneously attorneys and patent practitioners. Their dual role causes problems when the rules that govern one role conflict with the rules that govern the other. One such problem is illustrated in Molins PLC v. Textron, Inc., where a patent attorney simultaneously representing two clients was caught between the Patent & Trademark Office's duty of candor and the attorney's duty of confidentiality imposed by the rules of professional responsibility. The Molins decision presents a problem because it creates uncertainty about whether confidentiality can be maintained by using the attorney-client privilege to defeat the …

Legal Protection Of Trade Secrets In The People's Republic Of China, Yuan Cheng

Washington International Law Journal

The increasing need for an adequate legal framework for the protection of trade secrets in the People's Republic of China led to the 1993 promulgation of the Law for Countering Unfair Competition ("LCUC"). The LCUC has removed some of the barriers to obtaining effective remedies. Under the LCUC, the injured party can rely on a legal definition of "trade secrets," sue third parties, and expect that authorities will investigate violations. Nevertheless, barriers to adequate protection for trade secrets remain. In discussing the legal framework for trade secrets protection, this Article illustrates how the ambiguity of the LCUC's relationship with other …

Phonorecords And Forfeiture Of Common-Law Copyright In Music, Mark A. Bailey

Washington Law Review

A highly disputed issue surrounding the Copyright Act of 1909 is whether the public distribution and sale of recordings of a musical work constitutes "publication." Historically, unless the author followed the Act's formal requirements for obtaining statutory protection, publication injected the musical work irrevocably into the public domain. In a 1995 decision, La Cienega Music Co. v. ZZ Top, the Ninth Circuit unwisely broke from the tradition and common understanding in the music industry by holding that phonorecord distribution is a publication of musical compositions. After examining the history and purpose of the Copyright Act, as well as the …

Can Reverse Engineering Of Software Ever Be Fair Use? Application Of Cambell'S "Transformative Use" Concept, John A. Williams

Washington Law Review

Several years after Atari v. Nintendo and Sega v. Accolade, debate and confusion remain within the U.S. software industry and legal community concerning the appropriate application of copyright's fair use doctrine to reverse engineering of software. This Comment discusses why and how the U.S. Supreme Court's recent fair use analysis in Campbell v. Acuff-Rose Music should be applied to help resolve the reverse engineering issue. Not only would application of Campbell's approach promote consistency among courts and confidence within the software industry, but it also would safeguard copyright's ultimate objective: the advancement of society's growth in science and …

Copyright Protection For Architectural Design: A Conceptual And Practical Criticism, Gregory B. Hancks

Washington Law Review

The Architectural Works Copyright Protection Act of 1990 (AWCPA) extended copyright protection to architectural design as part of Congress's effort to conform U.S. law to the Berne Convention. U.S. courts previously had treated architecture as a "useful article" and generally had denied it protection under the "separability" doctrine. The AWCPA treats architecture similarly to other categories of copyrightable subject matter. Conceptually, this is inappropriate because (I) architectural design is a professional service, (2) architecture is a part of our public environment, and (3) architecture's expressive aspects cannot be adequately separated from its useful aspects. As a practical matter, the AWCPA …

Doctrine Of Equivalents After Hilton Davis: A Comparative Law Analysis, Toshiko Takenaka

Articles

This Article will address a number of major topics. First, it discusses the Federal Circuit's renewed interest in Graver Tank and the merger of the infringement test with the patentability test established by the Supreme Court in Graham v. John Deere Co. Then, this Article responds to the dissenting judges in Hilton Davis who emphasized the danger of uncertainty that stems from the in-principle application of the doctrine of equivalents. This response explains that the application of the doctrine does not increase the uncertainty in determining infringement but, rather, encourages clear, definitive claim drafting. It then examines the relationship …

Does A Cultural Barrier To Intellectual Property Trade Exist? The Japanese Example, Toshiko Takenaka

Articles

What is the so-called "cultural barrier to intellectual property trade?" No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this "cultural barrier to intellectual property trade" theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign …

A Brief Defense Of Mass Market Software License Agreements, Robert W. Gomulkiewicz

Articles

In the rapidly changing world of personal computer software, the end user license agreement ("EULA") has endured. The EULA is a familiar component of most personal computer software transactions. Many commentators, however, have maligned the practice of standard form software licensing. A survey of the literature on the subject might lead one to conclude that there are only critics--and no proponents--of EULAs.

Despite the din of criticism, EULAs continue to be widely usedby almost every mass-market software publisher, even though the cost of doing so is significant. This Article explains the value of EULAs for both software publishers and users, …