Law Commons^™

Social Networking: A Conceptual Analysis Of A Data Controller, Rebecca Wong

Dr Rebecca Wong

This article updates a working party looking at the definition of a "data controller" under the Data Protection Directive 95/46/EC within the context of a social networking environment. In brief, the article considers twhether the phenomenom of social networking (through Facebook (FB), MySpace and Bebo) has produced unintended consequences in the interpretation and application of the Data Protection Directive 95/46/EC to the online environment. The Data Protection Directive 95/46/EC defines a "data controller" broadly to refer to the 'natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means …

Evaluation Of The Design Piracy Prohibition Act: Is The Cure Worse Than The Disease?, Silvia Beltrametti

Silvia Beltrametti

Abstract: Is the Design Piracy Prohibition Act a necessary addition to the Intellectual Property panorama of the United States? American designers and otherwise creative minds do not have any means to protect their innovative design creations because none of the existing intellectual property measures can be tailored to the protection of design rights. To explore this issue, I go back to the underlying reasons for prohibiting the trade of counterfeit goods and I argue that counterfeiting and design piracy are analytically similar and there is no reason justifying a different legal treatment, especially given the close interrelation of these two …

Rational Design Rights Ignorance, David Orozco

David Orozco

No abstract provided.

Spillovers Theory And Its Conceptual Boundaries, Brett Frischmann

William & Mary Law Review

No abstract provided.

Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie

William & Mary Law Review

No abstract provided.

Prospective Of Foreign Prosecution History Estoppel In Korean Patent Litigation, Hyung Joon Lee

Hyung Joon Lee

This Article responds to an emerging view, in patent litigation, to employ foreign prosecution history estoppel as a doctrine in claim construction. In this regard, the United States Court of Appeals for the Federal Circuit (hereinafter, referred to as CAFC) has found a representation made during a patent litigation in Korea to be effective as a prosecution history estoppel in a U.S. patent infringement suit, i.e., AstraZeneca v. Andrx Pharmaceuticals (04-1562). This Article reviews the foundation of this decision, such as Doctrine of Equivalents and Prosecution History Estoppel. Subsequently, the present Article examines several important cases to analyze the applicability …

The Imperfect Is The Enemy Of The Good: Anticircumvention Versus Open Innovation, Wendy Seltzer

Wendy Seltzer

Digital Rights Management, law-backed technological control of usage of copyrighted works, is clearly imperfect: It often fails to stop piracy and frequently blocks non-infringing uses. Yet the drive to correct these imperfections masks a deeper conflict, between the DRM system of anticircumvention and open development in the entire surrounding media environment. This conflict, at the heart of the DRM schema, will only deepen, even if other aspects of DRM can be improved. This paper takes a systemic look at the legal, technical, and business environment of DRM to highlight this openness conflict and its effects.

Scholars have described DRM’s failures …

How (Not) To Discourage The Unscrupulous Copyist, Peter L. Ludwig

Peter L. Ludwig

This short article explores how the U.S. and Japanese courts implement the doctrine of equivalence when determining patent infringement. The doctrine of equivalence is a balance of, on one hand, the public’s interest to know the metes and bounds of the patent; and on the other hand, the private interest of the patentee to be granted a sufficient scope for the granted patent. After comparing and contrasting the courts’ implementation of the doctrine, I propose a new method that places the burden on the patent practitioner, before infringement proceedings begin, to determine the proper scope of the patent.

Repackaging, Pharmaceuticals, And The European Union: Managing Gray Markets In An Uncertain Legal Environment, Robert Bird

Robert C Bird

One of the most robust gray markets in the world is the parallel importation of pharmaceutical drugs in the European Union (EU). Drug manufacturers have tried to stop parallel importation with over thirty years of litigation. The result has applied. This manuscript examines the forces underlying the EU gray market for drugs, discusses how trademark law and not patent law has become the primary basis for legal challenges, and offers strategies for manufacturers to impede importers in a truly chaotic legal environment.

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear.

Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear.

Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

The Gene Wars: Science, The Law And The Human Genome, Omid E. Khalifeh

Omid E Khalifeh J.D.

Is there a place for gene patents in the patent act? Since before the ruling in Diamond v. Chakrabarty this issue has stirred much controversy in the legal and scientific communities. Although the scope of patentable subject matter has been defined, whether gene patents fall within the precise limits of the Chakrabarty doctrine remains unclear. Gene patents have increasingly faced scrutiny from people who often times don’t understand genetics or the complexities of the patent process. A lack of understanding has led them to make emotive and one-sided arguments. In his novels, Michael Crichton warns of dangerous mutated bacteria and …

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …

21st Century Trade Agreements: Implications For Development Sovereignty, Rachel D. Thrasher, Kevin P. Gallagher

Rachel D Thrasher

This paper examines the extent to which the emerging world trading regime leaves nations the “policy space” to deploy effective policy for long-run diversification and development and the extent to which there is a convergence of such policy space under global and regional trade regimes. We examine the economic theory of trade and long-run growth and underscore the fact that traditional theories lose luster in the presence of the need for long-run dynamic comparative advantages and when market failures are rife. We then review a “toolbox” of policies that have been deployed by developed and developing countries past and present …

Licensing Complementary Patents: ‘Patent Trolls’, Market Structure, And ‘Excessive’ Royalties, Anne S. Layne-Farrar, Klaus Schmidt

Anne S. Layne-Farrar

The infamous Blackberry case brought new attention to so-called “patent trolls” and began the general association of trolls with “non-practicing” patent holders. This has had important legal consequences: Namely, patent holders have been denied injunctive relief because they did not practice the patents themselves. In this paper we analyze how patent holders –– both non-practicing and vertically integrated –– choose their royalties depending on the structure of the upstream and downstream markets and the types of licensing agreements available. We show that a vertically integrated firm has an incentive to raise its rivals’ costs and to restrict entry on the …

In The Wake Of Reinvigorated U.S. Supreme Court Activity In Patent Appeals, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Stifling Or Stimulating - The Role Of Gene Patents In Research And Genetic Testing, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Navigating Uncharted Waters: Intellectual Property Rights Surrounding Genomics Research & Development Information, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Collegiality And Collaboration In The Age Of Exclusivity, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

License To Sue? The Availability Of Declaratory Judgment Actions To Patent Licensees After Medimmune, Inc. V. Genentech, Inc., Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas

Dana M. Muir

In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted …

The Countervailing Interests Of The Progression And Application Of Biotechnological Innovation Supporting The Modification Of Current Exclusionary Property Rights, Sebastian Ohanian

Sebastian Ohanian

This paper will describe current hurdles in stem cell research and determine the legal landscape necessary to facilitate advancements in the field with a specific emphasis on Moore v. Regents of the University of California, its progeny, and applicable federal policies. This article will begin with an introduction to the scientific significance of stem cells and the tools that scientists require to perform genetic research, describe the barriers impeding research, examine recent changes in policy, and propose modifications to policies to maximize growth in the field.

The Countervailing Interests Of The Progression And Application Of Biotechnological Innovation Supporting The Modification Of Current Exclusionary Property Rights, Sebastian Ohanian

Sebastian Ohanian

This paper will describe current hurdles in stem cell research and determine the legal landscape necessary to facilitate advancements in the field with a specific emphasis on Moore v. Regents of the University of California, its progeny, and applicable federal policies. This article will begin with an introduction to the scientific significance of stem cells and the tools that scientists require to perform genetic research, describe the barriers impeding research, examine recent changes in policy, and propose modifications to policies to maximize growth in the field.

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

Three Years After Ebay (2009) What Do Patent Holders Need To Prove To Get An Injunction? What Is The Significance Of Competition Between The Parties?, Stacy B. Streur

Stacy B. Streur

The U.S. Supreme Court decision in eBay v. MercExchange, 547 U.S. 388(2006),has had a significant and lasting impact on the process district courts use to analyze requests for permanent injunctive relief in patent infringement actions. It has not, however, had a significant and lasting impact on the outcome of those decisions. In the first year after the eBay decision there was a spike in the number of requests for injunctive relief that were denied; but, since that time, most jurisdictions have returned to the pre-eBay practice of generally, absent a compelling public interest concern, granting permanent injunctive relief against patent …

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

Julie Cromer Young

This article explores the explosion of copyright protection now granted to authors under the age of eighteen, the age of majority in most states. Historically, contracting parties have been able to use the doctrine of infancy to disaffirm contracts they made when they were not yet of legal age. The Internet is changing this. As with most Internet sites, sites targeted at minors require young authors to accept terms of use in order to publish and distribute works online. Those terms and conditions often compromise the copyrights of the child authors, preventing them from reclaiming the licenses once the authors …

Pharma’S Strategies On Fighting Generics And Healthcare Reform, Rongxiang Liu

Rongxiang Liu

This article first briefly reviews the Hatch-Waxman Act. The Act authorizes a scheme to make it much easier to obtain marketing approval for generics, as well as gives incentives to generic makers to bring generics to the market. The article then discusses the four strategies and their future impacts on drug market. Lastly, to eliminate these impacts, it proposes two legislations to ensure cheap generics be more widely available in order to reduce the healthcare cost.