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Articles 1 - 30 of 86
Full-Text Articles in Law
The Post-Festo World Of Equivalents, 2 J. Marshall Rev. Intell. Prop. L. 182 (2003), Michael D. Kaminski
The Post-Festo World Of Equivalents, 2 J. Marshall Rev. Intell. Prop. L. 182 (2003), Michael D. Kaminski
UIC Review of Intellectual Property Law
The Supreme Court again began to delve into substantial patent issues by addressing the interplay between prosecution history estoppel and the doctrine of equivalents. An analysis of the opinions in the Federal Circuit’s en banc ruling, together with the Supreme Court’s own decision may help to clarify some of the unanswered questions still lingering regarding what equivalents are available and when. The prosecution history will take a more prominent place in the minds of both patent prosecutors and litigators as courts attempt to determine the appropriate relationship between prosecution history estoppel and the doctrine of equivalents.
Flawed Or Flawless: Twenty Years Of The Federal Circuit Court Of Appeals, 2 J. Marshall Rev. Intell. Prop. L. 178 (2003), Charles Shifley
Flawed Or Flawless: Twenty Years Of The Federal Circuit Court Of Appeals, 2 J. Marshall Rev. Intell. Prop. L. 178 (2003), Charles Shifley
UIC Review of Intellectual Property Law
A common complaint among patent practitioners is that the Court of Appeals for the Federal Circuit does not provide the predictability needed in patent law. The author suggests that a better question is whether the Federal Circuit provides more predictability than the alternative, the regional circuits. The choice is clear, the Federal Circuit provides greatly enhanced predictability compared to the regional circuits and patent practitioners should be thankful for what they have, and do not have.
Can This Brokered Marriage Be Saved? The Changing Relationship Between The Supreme Court And Federal Circuit In Patent Law Jurisprudence, 2 J. Marshall Rev. Intell. Prop. L. 201 (2003), Debra D. Peterson
UIC Review of Intellectual Property Law
Congress created the Federal Circuit, in part, to provide uniformity in patent decisions throughout the United States and stability in patent law. During the first decade of the Federal Circuit’s existence, the Supreme Court largely deferred to the Federal Circuit in patent law decisions. However, the Supreme Court’s initial deference to the Federal Circuit has since been replaced by critical view of the Federal Circuit’s decisions and its decision-making processes. This article proposes that the Supreme Court has correctly abandoned its deferential mindset toward the Federal Circuit since the Federal Circuit was never intended to be the de facto Supreme …
Using Declaratory Judgments Offensively In Patent Cases - Dj Jive, 3 J. Marshall Rev. Intell. Prop. L. 1 (2003), Peter J. Shurn Iii
Using Declaratory Judgments Offensively In Patent Cases - Dj Jive, 3 J. Marshall Rev. Intell. Prop. L. 1 (2003), Peter J. Shurn Iii
UIC Review of Intellectual Property Law
The Declaratory Judgment Act permits a federal district court to grant relief where an actual controversy exists. Whether an actual controversy exists for declaratory judgments of patent non-infringement is governed by the Federal Circuit's test of the "totality of the circumstances." The declaratory judgment plaintiff has the burden of proving an actual controversy exists. However, the declaratory judgment defendant has the burden of proving patent infringement exists. Reasonable apprehension for a suit may be found to exist although the patentee made no patent-based threat. A company fearing business disruption from patent litigation can thus use declaratory judgment actions offensively. Declaratory …
How The Supreme Court Decides To Review Intellectual Property Cases, 3 J. Marshall Rev. Intell. Prop. L. 19 (2003), Matthew M. Neumeier
How The Supreme Court Decides To Review Intellectual Property Cases, 3 J. Marshall Rev. Intell. Prop. L. 19 (2003), Matthew M. Neumeier
UIC Review of Intellectual Property Law
Because Supreme Court review is essentially discretionary, it is increasingly rare for the Court to hear an argument concerning Intellectual Property rights. However the Supreme Court will critically review cases that belong in one of four distinct categories. These include cases in which: (1) lower court decisions conflict, (2) lower courts have departed from accepted and usual court proceedings, (3) an important federal question is decided, and (4) lower courts have departed from Supreme Court precedent. This article provides practitioners with some guidance in determining whether the Supreme Court is likely to review a lower court decision on an Intellectual …
Protecting Minor Improvements On Core Patents: Complementing Traditional Patent Protection With Strategic Disclosure, 2 J. Marshall Rev. Intell. Prop. L. 398 (2003), Todd E. Rinner
UIC Review of Intellectual Property Law
Managing intellectual property in a manner that achieves its full value is a priority for companies of all types and sizes. Rather than viewing defensive publications as strictly an alternative to patenting, it should be seen as an efficient complement to be utilized in combination with patenting. The development of minor improvements on major inventions presents an attractive situation for combining strategic disclosure with traditional patent protection. Publishing information about a minor improvement will create prior art and prevent competitors from obtaining a patent.By publishing incremental innovations to core patents, a firm can achieve the initialpatent protection necessary to create …
No-Copy Technology And The Copyright Act: Has The Music Industry Been Allowed To Go Too Far In Diminishing The Consumers’ Personal Use Rights In The Digital World?, 2 J. Marshall Rev. Intell. Prop. L. 337 (2003), Kevin C. Earle
UIC Review of Intellectual Property Law
Record companies have in recent years begun production of compact discs containing “no-copy” technology. These CDs appear to be classic CDs but are alleged to have poorer sound quality and often will not play in computers. The recording industryhas used this and other methods to stem the increasing popularity of CD copying and unauthorized music file distribution online. While the right of copyright owners to protect their intellectual property is well established, it is arguable that the methoddescribed herein interferes with a consumer’s right to make personal use of legally purchased content. Such right is alleged to stem from the …
Mary Mary Quite Contrary How Does Your Biodiverse Garden Grow? An Overview Of Intellectual Property Protections For Plants In The United States, Europe, And Japan, 2 J. Marshall Rev. Intell. Prop. L. 307 (2003), Jacqueline M. Cohen
UIC Review of Intellectual Property Law
As we enter further into the boom of the biotechnology era, the role that plants play in our everyday lives continues to grow increasingly more important. This article seeks to provide a general outline of the protections available on a national, as well as, international level for new plant varieties produced through both genetic engineering processes utilized by the biotechnology field, as well as, the "older" methods, such as cross germination, splicing, etc. that are still successfully being utilized by the general scientific community. In the broadest sense this article is designed to help those who are unfamiliar with the …
Protecting The Rights Of Indigenous Cultures Under The Current Intellectual Property System: Is It A Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003), Juan Andrés Fuentes
Protecting The Rights Of Indigenous Cultures Under The Current Intellectual Property System: Is It A Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003), Juan Andrés Fuentes
UIC Review of Intellectual Property Law
Globalization and digital communication trends have provided new avenues and incentives for the commercial use of the folkloric artwork of indigenous peoples. Such commercial uses, however, have occurred largely without any creative control or financial benefit inuring to the original creators, people, or tribe of whom the artistic works form an integral part of their culture. Since much of the works are owned by a community as a whole, as opposed to being owned by individuals, it is difficult to fit such works into an intellectual property regime that is based on laws formed around Western notions of art and …
Stake Your (Linking) Claim: Assessing The Impact Of In Re Doyle On Patent Reissue, 2 J. Marshall Rev. Intell. Prop. L. 360 (2003), Grace C.Y. Leung
Stake Your (Linking) Claim: Assessing The Impact Of In Re Doyle On Patent Reissue, 2 J. Marshall Rev. Intell. Prop. L. 360 (2003), Grace C.Y. Leung
UIC Review of Intellectual Property Law
A common problem encountered during patent prosecution is a restriction requirement. According to In re Doyle, the failure to assert linking claims that readon non-elected claims is an error correctable by reissue. This paper argues that the Doyle court was correct in holding that Doyle was distinguishable from In re Orita. Allowance of genus claims that link previously non-elected claims comports with the patent statute. As the public is on notice that patent claims may be broadenedwithin two years, the Doyle holding ensures that the patentee is given the fullbreadth of protection necessary to “promote the Progress of Science and …
Creative Claim Drafting: Claim Drafting Strategies, Specification Preparation, And Prosecution Tactics, 3 J. Marshall Rev. Intell. Prop. L. 34 (2003), George F. Wheeler
Creative Claim Drafting: Claim Drafting Strategies, Specification Preparation, And Prosecution Tactics, 3 J. Marshall Rev. Intell. Prop. L. 34 (2003), George F. Wheeler
UIC Review of Intellectual Property Law
Patent prosecution is becoming more complex with every new rule, statute, and court decision. Rather than approaching the changes with a glass-is-half-empty view, the author explains why this development is a boon to the importance of skilled patent prosecutors. The author reviews the latest developments that have given added scrutiny to the patent drafting process and provides nine tips to assist patent prosecution in the current environment.
The Inevitable Disclosure Doctrine In Illinois: Is It An Inevitable Mistake?, 2 J. Marshall Rev. Intell. Prop. L. 379 (2003), Juliet Ruth Otten
The Inevitable Disclosure Doctrine In Illinois: Is It An Inevitable Mistake?, 2 J. Marshall Rev. Intell. Prop. L. 379 (2003), Juliet Ruth Otten
UIC Review of Intellectual Property Law
In several recent decisions, Illinois courts have established that an ex-employee may be restrained from using information from their former employer, that will be "inevitably disclosed", even when no non-competition agreement existed between the employee and the employer. The use of this"inevitable disclosure" doctrine allows Illinois courts to create quasi non-competition agreements even where there has been no actual or threatened misappropriation of an employer's information. This comment proposes that Illinois courts should apply the inevitable disclosure doctrine only when several limiting factors are met and, instead, should encourage employers to use reasonable confidentiality agreements so that neither the employer's …
Navigating The Bankruptcy Waters In A Domain Name Rowboat, 3 J. Marshall Rev. Intell. Prop. L. 61 (2003), Beverly A. Berneman
Navigating The Bankruptcy Waters In A Domain Name Rowboat, 3 J. Marshall Rev. Intell. Prop. L. 61 (2003), Beverly A. Berneman
UIC Review of Intellectual Property Law
The combination of rapidly emerging technologies and changes in intellectual property and information technology law has resulted in new species of property and contract rights, such as Internet domain names. While some laws that were enacted before the rise of the Internet cannot be reconciled with the issues raised by domain names, the Bankruptcy Code appears to be equipped with the tools to handle most issues raised by this new species of property. This article discusses how domain names are treated during bankruptcy, how the Bankruptcy Code can be used to protect the function and value of a debtor's domain …
Is The Experimental Use Exemption For Patent Infringement Still Needed?, 3 J. Marshall Rev. Intell. Prop. L. 103 (2003), Melanie K. Kitzan Haindfield
Is The Experimental Use Exemption For Patent Infringement Still Needed?, 3 J. Marshall Rev. Intell. Prop. L. 103 (2003), Melanie K. Kitzan Haindfield
UIC Review of Intellectual Property Law
The judicially created experimental use exemption has traditionally been a limitation on a patent holder’s rights because it allows patent infringing activities involving research for mere curiosity or amusement. This exemption was later modified to further protect any research performed by institutions not having a profit motive for the patent infringement, resulting in many institutions freely infringing patented inventions, knowing that broad protection was available under the experimental use exemption. However, in 2002 the Federal Circuit effectively ended the experimental use exemption as a defense for academic institutions, by recognizing that academic institutions can be held liable for infringement for …
The Next Wave: Federal Regulatory, Intellectual Property, And Tort Liability Considerations For Medical Device Software, 2 J. Marshall Rev. Intell. Prop. L. 259 (2003), Paul A. Mathew
UIC Review of Intellectual Property Law
Counsel for the medical software technologist faces an unusually complex, ongoing, high-stakes challenge. Counsel operates in a special field of commercial, legal and regulatory forces: (1) intellectual property laws which govern the expression and protection of commercial rights derived from advances in medical science and technology; (2) existing and proposed contracts/warranty laws that govern technological commercial relationships; (3) negligence, professional liability, and product liability laws that govern the marketing of medical technologies; and, (4) a new body of regulation derived from the power of the federal government to indirectly provide for the safety, effectiveness, privacy, and security of medical technologies …
Making A Pitch For Extending A Judge's Power To Determine Obviousness: How The Mcginley Court Struck Out, 3 J. Marshall Rev. Intell. Prop. L. 156 (2003), John Petravich
UIC Review of Intellectual Property Law
Obviousness is one of the most litigated elements of patent of validity, due primarily to the enormous gray area between the roles of judge and jury. While obviousness is ultimately a legal question, the courts make an effort to leave the underlying factual determinations to the jury, with mixed results. McGinley v. Franklin Sports, Inc. illustrates the problems with the Court of Appeals for the Federal Circuit’s current approach as to what role juries and district court judges should play in determining obviousness of a patent. Instead of the McGinley approach of maintaining a significant role for juries in resolving …
The Rambus Shell Game: A Lack Of Integrity In The Standards Setting Process, 3 J. Marshall Rev. Intell. Prop. L. 138 (2003), David Adam Dorth
The Rambus Shell Game: A Lack Of Integrity In The Standards Setting Process, 3 J. Marshall Rev. Intell. Prop. L. 138 (2003), David Adam Dorth
UIC Review of Intellectual Property Law
Standards setting organizations are formed to promulgate industry standards and in turn manage the course of technology that falls within their particular niche. Industry standards are the cornerstone of the technological compatibility that we enjoy as an advanced society. As we delve into the 21st century and beyond, the role of integrity in the standards setting process as a whole must be recognized by standards groups, end-users and importantly by the courts. This comment seeks to draw these entities into focusing on integrity and understand its importance in standards setting. Finally, this article strives to present a good starting point …
“You Said What?”: A Look At The Influence Of Foreign Patent Prosecution On Domestic Infringement Litigation, 3 J. Marshall Rev. Intell. Prop. L. 119 (2003), Brian R. Cheslek
“You Said What?”: A Look At The Influence Of Foreign Patent Prosecution On Domestic Infringement Litigation, 3 J. Marshall Rev. Intell. Prop. L. 119 (2003), Brian R. Cheslek
UIC Review of Intellectual Property Law
The current patent statutes are structured to grant unambiguous patents that give patent holders a right to exclude and provide the public with ample notice of the patented subject matter. Therefore, courts should interpret the scope of a claim using only the specification and the file history, the very tools used by the patent holder and public to define the bounds of the patent. Unfortunately, limiting statements made abroad can be allowed into evidence, creating a way or accused infringers to evade liability. By permitting judges to admit extrinsic evidence for the purpose of providing clarity to a supposedly already …
A Hollow Victory For The Common Law? Trips And The Moral Rights Exclusion, 2 J. Marshall Rev. Intell. Prop. L. 321 (2003), Monica Kilian
A Hollow Victory For The Common Law? Trips And The Moral Rights Exclusion, 2 J. Marshall Rev. Intell. Prop. L. 321 (2003), Monica Kilian
UIC Review of Intellectual Property Law
With the adoption of moral rights legislation in the United Kingdom and the United States, it appeared that moral rights were on the way to becoming acceptable in Anglo-American jurisdictions. However, the adoption of the TRIPs Agreement expressly excluded the moral rights provision of the Berne Convention. TRIPs signals that all is not well with the integration of moral rights into common law societies. This Article discusses the issues that hamper the acceptance of moral rights. This Article concludes that by bringing economic and moral rights into the same arena and softening the dichotomy of economic versus personal rights, the …
Where's The Beef? Dissecting Spam's Purported Harms, 22 J. Marshall J. Computer & Info. L. 13 (2003), Eric Goldman
Where's The Beef? Dissecting Spam's Purported Harms, 22 J. Marshall J. Computer & Info. L. 13 (2003), Eric Goldman
UIC John Marshall Journal of Information Technology & Privacy Law
This article seeks to identify areas that truly require legislative intervention by examining the harms purportedly caused by spam. Identifying exactly what constitutes spam is an imprecise task since one e-mail may be junk to one and an important e-mail to another. The article attempts to analyze why consumers feel strongly against spam. This reaction is compared to consumers’ comparatively tolerant reaction to other unwanted advertisement in different mediums, such as billboards or magazine advertisements. Several factors are considered, such as the waste of time associated with sorting spam, the loss of consumers’ control over their in-boxes, and the annoyance …
Spam Legislation In The United States, 22 J. Marshall J. Computer & Info. L. 3 (2003), David E. Sorkin
Spam Legislation In The United States, 22 J. Marshall J. Computer & Info. L. 3 (2003), David E. Sorkin
UIC John Marshall Journal of Information Technology & Privacy Law
This article examines the effect of spam legislation in the United States. It discusses state legislation and the common provisions of state spam legislation, such as disclosure and labeling requirements and opt-out provisions. It also analyzes the consequences of state anti-spam legislation. Federal legislation is analyzed, with a brief look at the CAN-SPAM Act of 2003. The article concludes that legislation has not had a big impact on spam, and the CAN-SPAM Act is not likely to change or curb spam.
The Do-Not-Call Registry Model Is Not The Answer To Spam, 22 J. Marshall J. Computer & Info. L. 79 (2003), Richard C. Balough
The Do-Not-Call Registry Model Is Not The Answer To Spam, 22 J. Marshall J. Computer & Info. L. 79 (2003), Richard C. Balough
UIC John Marshall Journal of Information Technology & Privacy Law
This article discusses why a system to combat unwanted Internet spam, or junk e-mail, should not be modeled after the Do-Not-Call registry developed to curtail telemarketing phone calls. The Do-Not-Call registry is an "opt-out" system where consumers must place their phone numbers on a list that designates them as consumers unwilling to accept telemarketing calls. In the Internet spam context, this article argues that to force Internet users to place their e-mail addresses on a similar do-not-spam list could lead to potential problems. For example, if a would-be spammer was to get a hold of that list, she or he …
After Can-Spam, How States Can Stay Relevant In The Fight Against Unwanted Messages:How A Children's Protection Registry Can Be Effective And Is Not Preempted, Under The New Federal Anti-Spam Law, 22 J. Marshall J. Computer & Info. L. 29 (2003), Matthew B. Prince
UIC John Marshall Journal of Information Technology & Privacy Law
The recipe for success to combat unsolicited and unwanted e-mail, otherwise known as spam, has not yet been formulated by the thirty-six states that have tried by enacting their own versions of anti-spam laws. Only two state prosecutions were ever successfully brought against spammers, and only one was able to enforce its law against an out-of-state spammer. Now, on the federal level, with the passing of the CAN-SPAM act, which essentially rehashes what states have attempted to do, the failure to provide any significant measure of national success against spam seems likely. However, a careful reading of the language of …
Spamming For Legal Services: A Constitutional Right Within A Regulatory Quagmire, 22 J. Marshall J. Computer & Info. L. 97 (2003), William E. Hornsby, Jr.
Spamming For Legal Services: A Constitutional Right Within A Regulatory Quagmire, 22 J. Marshall J. Computer & Info. L. 97 (2003), William E. Hornsby, Jr.
UIC John Marshall Journal of Information Technology & Privacy Law
This article addresses the regulatory schemes applied to lawyers who advertise their legal services to consumers through electronic communications. Concerns have arisen about lawyers using electronic communications to offer their services to their targeted communities. Since the Supreme Court’s 1977 decision in Bates, lawyers have been able to advertise their services without state permission. However, states have imposed ethical regulations in an effort to ensure that lawyers do not over reach their boundaries during such advertising efforts. The question is raised as to whether states’ spam rules also apply to lawyers who choose to advertise over the Internet. This article …
Vendor Liability For Advertising In Unsolicited Commercial E-Mail, 22 J. Marshall J. Computer & Info. L. 137 (2003), Anne P. Mitchell
Vendor Liability For Advertising In Unsolicited Commercial E-Mail, 22 J. Marshall J. Computer & Info. L. 137 (2003), Anne P. Mitchell
UIC John Marshall Journal of Information Technology & Privacy Law
This article discusses whether vendors should be held liable for spam. Vendors are those companies whose products or services are being peddled in spam advertising. Yet, vendors disclaim responsibility for the issuance of spam because they were not the ones who actually sent the spam in the first place. This article takes the stance that because vendors contribute and or benefit from the wrongful acts of the actual spammers, vendors should not be able to escape liability by blaming the primary actors, the spammers. Further, if vendors were to be held liable for spam, they would be an easier entity …
Examination Of The Model Rules Of Professional Conduct Pertaining To The Marketing Of Legal Services In Cyberspace, 22 J. Marshall J. Computer & Info. L. 113 (2003), Matthew T. Rollins
Examination Of The Model Rules Of Professional Conduct Pertaining To The Marketing Of Legal Services In Cyberspace, 22 J. Marshall J. Computer & Info. L. 113 (2003), Matthew T. Rollins
UIC John Marshall Journal of Information Technology & Privacy Law
Advancements in technology have allowed lawyers to reach new and bigger audiences. As a result, the American Bar Association (ABA) modified the Model Rules of Professional Conduct to provide a guideline lawyers can follow regarding the propriety of marketing their legal services over the Internet. This article examines the changes in the Model Rules and the effects of these changes on lawyers advertising their legal services on the Internet. Also discussed are the issues of whether anti-spam laws are binding on lawyers and whether it is proper for lawyers to advertise over the Internet. The ban on chat room solicitation …
Spam And Beyond: Freedom, Efficiency, And The Regulation Of E-Mail Advertising, 22 J. Marshall J. Computer & Info. L. 141 (2003), Richard Warner
Spam And Beyond: Freedom, Efficiency, And The Regulation Of E-Mail Advertising, 22 J. Marshall J. Computer & Info. L. 141 (2003), Richard Warner
UIC John Marshall Journal of Information Technology & Privacy Law
Traditional forms of mailing advertisers bear the full cost of delivering advertisements to consumers. However, this is not true in the form of all e-mail advertisement, spam or not. E-mail users subsidize part of any e-mail advertisement, thereby splitting costs between advertiser and the consumer who receives the e-mail advertisement. This article takes the position that the subsidization that occurs in e-mail advertisement should be eliminated because it unjustifiably violates individual freedom. The article discusses why the delivery charges between sender and recipient are divided, why such cost-division violates freedom, and whether the violation is justified. The article also defines …
Intel V. Hamidi: Spam As A Trespass To Chattels - Deconstruction Of A Private Right Of Action In California, 22 J. Marshall J. Computer & Info. L. 205 (2003), J. Brian Beckham
Intel V. Hamidi: Spam As A Trespass To Chattels - Deconstruction Of A Private Right Of Action In California, 22 J. Marshall J. Computer & Info. L. 205 (2003), J. Brian Beckham
UIC John Marshall Journal of Information Technology & Privacy Law
This casenote analyzes and critiques the decision reached by the California Supreme Court in Intel v. Hamidi. Intel v. Hamidi runs contrary to other cases that have found a cause of action for trespass to chattels where harm was caused by unwanted electronic communications: Thrifty-Tel, Inc. v. Benezek, eBay v. Bidder’s Edge, and CompuServe v. Cyber Promotions. The California Supreme Court in Intel v. Hamidi suggested other causes of action Intel could have brought instead of trespass to chattels. The casenote looks at each proffered alternative and concludes that none of the alternatives were feasible and that Intel should have …
Wireless Spam This Way Comes: An Analysis Of The Spread Of Wireless Spam And The Present And Proposed Measures Taken To Stop It, 22 J. Marshall J. Computer & Info. L. 229 (2003), Bridget O'Neill
UIC John Marshall Journal of Information Technology & Privacy Law
Spam in the form of unsolicited unwanted e-mail is already a recognized concern in the United States. However, a different type of spam, wireless spam, is starting to make its way to the United States. Wireless spam targets items cell phones with text messaging capabilities, pagers, and personal digital assistants (PDAs). These devices tend to be heavily relied on by their respective owners who bring these devices wherever they go, so to receive wireless spam represents a greater level of privacy intrusion. This article analyzes the various legislative measures that have been considered to regulate spam. It recognizes that most …
A Further Darkside To Unsolicited Commercial E-Mail? An Assessment Of Potential Employer Liability For Spam E-Mail, 22 J. Marshall J. Computer & Info. L. 179 (2003), Ben Dahl
UIC John Marshall Journal of Information Technology & Privacy Law
This article looks at employer liability for pornographic spam in the workplace. It begins with an analysis of the risks and unique problems posed by employees’ Internet use while at work. The article makes note of some trouble areas where employers may be held vicariously liable for sexual harassment. It is suggested that employers protect themselves by taking steps to: 1) reduce the prevalence of unsolicited commercial e-mail in the workplace; 2) mute the potential harm of offensive e-mail; and 3) create a paper trail indicating diligence in the fight to protect employees. Employers may reach these goals by the …