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Full-Text Articles in Law
The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman
The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman
Scholarly Articles
This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals …
Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte
Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte
Scholarly Articles
More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.
This Article represents the first …
The Case Against Federalizing Trade Secrecy, Christopher B. Seaman
The Case Against Federalizing Trade Secrecy, Christopher B. Seaman
Scholarly Articles
Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.
This Article engages in the first systematic critique of the claim that federalizing …
Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston
Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston
Scholarly Articles
Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose, …
The God Paradox, Joshua A.T. Fairfield
The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston
The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston
Scholarly Articles
In 2005, the United States Court of Appeals for the Federal Circuit rendered a decision on an “issue of first impression” interpreting a one hundred sixty-three year old provision of the United States Code - the “false marking” statute embodied in 35 U.S.C. § 292. It is false marking to mark as patented an unpatented article if done with the intent to deceive the public and, as such, is a fineable offense. The false marking statute remains one of only a handful of qui tam actions left intact from a rich history of varied incentives provided by the government for …
Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston
Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston
Scholarly Articles
Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses …