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Fostering Web 2.0 Innovation: The Role Of The Judicial Interpretation Of The Dmca Safe Harbor, Secondary Liability And Fair Use, 12 J. Marshall Rev. Intell. Prop. L. 70 (2012), Susanna Monseau
UIC Review of Intellectual Property Law
Web 2.0 has generated a surplus of creativity, encouraging innovation of new technologies and further creative expansion of the internet. Social media platforms have demonstrated a significant growth during this time and have been used to create and disseminate a wealth of information and cultural material. While it is important that copyright owners receive legal protection of the content they create, it is necessary not to simultaneously stifle the creativity of end-users. Copyright owners have more power in bargaining for their rights, and their rights are well established through statutory protections. However, internet innovators and end-users, who may have a …
The Ownership And Exploitation Of Personal Identity In The New Media Age, 12 J. Marshall Rev. Intell. Prop. L. 1 (2012), Thomas Hemnes
The Ownership And Exploitation Of Personal Identity In The New Media Age, 12 J. Marshall Rev. Intell. Prop. L. 1 (2012), Thomas Hemnes
UIC Review of Intellectual Property Law
Personally Identifiable Information (“PII”) has never been more valuable. In today’s networked world, seemingly trivial facts can be collected, molded into a marketable economic profile, and transferred in the blink of an eye. To be sure, the commodification of PII allows for provision of dramatically more efficient and effective services. Yet the potential for privacy abuses is substantial. What interest does one have in the constellation of facts that defines one’s identity? Is it something one can own, like their right of publicity? Or are others free to use what they learn about a person? This article surveys current privacy …
What Trademark Law Could Learn From Employment Law, 12 J. Marshall Rev. Intell. Prop. L. Rev. 118 (2012), Robert A. Kearney
What Trademark Law Could Learn From Employment Law, 12 J. Marshall Rev. Intell. Prop. L. Rev. 118 (2012), Robert A. Kearney
UIC Review of Intellectual Property Law
Trademark litigation is as unpredictable as it is expensive. The Trademark Trial and Appeal Board (“Board”) considers as many as thirteen different factors when evaluating whether a trademark causes a “likelihood of confusion.” Federal courts use many of the same factors, though which factors are chosen differ by jurisdiction, and, do not necessarily overlap with the Board. Further, a party can litigate for a time before the Board, then in federal court, and then back before the Board. And, if this were not enough, the Board’s decisions have little if any preclusive effect on the court, and, a court’s decision …
Are Royalties Reasonable In Patent Infringment Suits? Using Hindsight At The Hypothetical Negotiating Table, 12 J. Marshall Rev. Intell. Prop. L. 241 (2012), Michael J. Carrozza
Are Royalties Reasonable In Patent Infringment Suits? Using Hindsight At The Hypothetical Negotiating Table, 12 J. Marshall Rev. Intell. Prop. L. 241 (2012), Michael J. Carrozza
UIC Review of Intellectual Property Law
Reasonable royalties have become the primary form of relief in patent infringement lawsuits. Once a patent is found valid and infringed, royalties are calculated based on a hypothetical license negotiation between the patent owner and infringer said to take place at the moment infringement began. The calculations seek to arrive at a royalty amount the parties would have agreed upon had an actual license been negotiated. But there is disagreement among courts as to what information should inform the royalty amount. Some take the hypothetical negotiation literally and disallow post-infringement information from entering the calculations because such information would have …
Patent Claim Construction As A Form Of Legal Interpretation, 12 J. Marshall Rev. Intell. Prop. L. 40 (2012), Christian E. Mammen
Patent Claim Construction As A Form Of Legal Interpretation, 12 J. Marshall Rev. Intell. Prop. L. 40 (2012), Christian E. Mammen
UIC Review of Intellectual Property Law
Since the U.S. Supreme Court’s landmark decision, Markman v. Westview Instruments, Inc., courts have employed a textualist approach when construing patent claims. Claim construction has been held to be purely a matter of law, which leaves no room for deference when the construction is reconsidered on appellate review. But as argued in this article, patent claims are a unique type of legal text, and cannot simply be analogized to statutes or contracts, which courts and scholars occasionally attempt to do. Taking lessons from the general legal theory of interpretation, the textualist approach should only be a starting point for the …
Hotfile, Megaupload, And The Future Of Copyright On The Internet: What Can Cyberlockers Tell Us About Dmca Reform?, 12 J. Marshall Rev. Intell. Prop. L. 205 (2012), Ross Drath
UIC Review of Intellectual Property Law
More than a decade ago, Napster brought the issue of copyright infringement by file-sharing to the center of the public stage. How would a body of copyright law built to regulate tangible objects apply in the digital realm? The safe harbor provisions of the Digital Millennium Copyright Act, intended as a compromise between the interests of copyright owners and webhosts, have instead introduced legal uncertainty and allocated the costs of online enforcement both inefficiently and disproportionately. While Napster and several other major peer-to-peer services have been shuttered in the intervening period, the scope of online copyright infringement continues to grow …
Taking, Tort, Or Crown Right?: The Confused Early History Of Government Patent Policy, 12 J. Marshall Rev. Intell. Prop. L. 145 (2012), Sean M. O'Connor
Taking, Tort, Or Crown Right?: The Confused Early History Of Government Patent Policy, 12 J. Marshall Rev. Intell. Prop. L. 145 (2012), Sean M. O'Connor
UIC Review of Intellectual Property Law
From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And …
You Say, “普拉达” I Say "Counterfeit": The Perils Of Civil Litigation As A Trademark Protection Strategy In China, 12 J. Marshall Rev. Intell. Prop. L. 261 (2012), Tricia M. Brauer
You Say, “普拉达” I Say "Counterfeit": The Perils Of Civil Litigation As A Trademark Protection Strategy In China, 12 J. Marshall Rev. Intell. Prop. L. 261 (2012), Tricia M. Brauer
UIC Review of Intellectual Property Law
Over the past century, China has been depicted as being solely to blame for the world’s most serious commercial piracy problem. But this characterization is not entirely China’s fault. Multinational corporations and international brand owners in China have adopted a flawed approach to combating trademark infringement that is actually making the problem worse within Chinese walls. Companies and brand owners have primarily implemented one dimensional, enforcement only approaches that rely specifically on litigation as a means to curb counterfeiting and trademark infringement. Since 2001, China has made substantial strides in the laws governing trademarks and has trended toward positive treatment …
Managing Peer-To-Peer Traffic In Mainland China And Hong Kong, 11 J. Marshall Rev. Intell. Prop. L. 548 (2012), Ke Steven Wan
Managing Peer-To-Peer Traffic In Mainland China And Hong Kong, 11 J. Marshall Rev. Intell. Prop. L. 548 (2012), Ke Steven Wan
UIC Review of Intellectual Property Law
For over a decade, copyright infringement using peer-to-peer ("P2P") file sharing has plagued the content industries. Response came in the form of massive lawsuits against file sharers and the use of technologies including digital rights management and technical protection measures. However, illegal P2P file sharing is still rampant. Increasingly, internet service providers ("ISPs") have begun to monitor network traffic with deep packet inspection. Under the Digital Millennium Copyright Act ("DMCA"), ISPs are usually only responsible for their own direct copyright infringing acts. To mitigate potential liability, some ISPs have agreed to partner with copyright owners to serve warnings to subscribers …
A Need For Clearer Language About Patent Law, 11 J. Marshall Rev. Intell. Prop. L. 457 (2012), Paul M. Janicke
A Need For Clearer Language About Patent Law, 11 J. Marshall Rev. Intell. Prop. L. 457 (2012), Paul M. Janicke
UIC Review of Intellectual Property Law
This article addresses the manner by which the principles and rules of United States ("U.S.") patent law are addressed, especially those that are not controversial. We often seem driven to use labels that are misleading to external observers, making the subject seem more complex than it is. The principal misstatements addressed in this article are: (1) saying that under American Invents Act, the U.S. is moving to a first-to-file system; (2) reciting that U.S. patent law has no extraterritorial reach; (3) characterizing the term of a U.S. patent as twenty years from filing; (4) purporting in patent licenses to grant …
Extraterritorial Protection Of Trade Secret Rights In China: Do Section 337 Actions At The Itc Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523 (2012), Steven E. Feldman, Sherry L. Rollo
Extraterritorial Protection Of Trade Secret Rights In China: Do Section 337 Actions At The Itc Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523 (2012), Steven E. Feldman, Sherry L. Rollo
UIC Review of Intellectual Property Law
With an ever increasing number of United States ("U.S.") companies conducting business abroad or conducting business with foreign entities there is more need than ever for the U.S. companies to consider how they can protect their intellectual property assets. The Federal Circuit‘s recent TianRui Grp.Co. v. Int’l Trade Comm’n and Amsted Indus. decision highlights the potential of section 337 of the U.S. Patent Act as a tool to prevent the exploitation of misappropriated trade secrets embodied in products that are imported into the United States. This article explores the potential impact of the TianRui decision on business practices abroad, particularly …
Chinese Patent Quality: Running The Numbers And Possible Remedies, 11 J. Marshall Rev. Intell. Prop. L. 478 (2012), Mark Liang
UIC Review of Intellectual Property Law
In an effort to improve its economic and technological prowess, China in recent years has promulgated measures that encourage patenting activity. These measures have had their intended effect. Over a million patent applications were filed at China’s State Intellectual Property Office ("SIPO") in 2010, making it the busiest patent office in the world—by comparison, a mere 600,000 were filed at the United States Patent and Trademark Office, placing it a distant second. The disparity and trend is expected to grow in the coming years. But looking behind the headline numbers raises doubts about the quality of China’s patents and the …
Cloud Computing And The Doctrine Of Joint Infringement: ‘Current Impact’ And Future Possibilities, 11 J. Marshall Rev. Intell. Prop. L. 673 (2012), Nicole D. Galli, Edward Gecovich
Cloud Computing And The Doctrine Of Joint Infringement: ‘Current Impact’ And Future Possibilities, 11 J. Marshall Rev. Intell. Prop. L. 673 (2012), Nicole D. Galli, Edward Gecovich
UIC Review of Intellectual Property Law
The computing landscape is changing in that businesses – and individuals – are increasingly turning to “the cloud” for computing solutions. In an attempt to maintain patent portfolios that keep pace with the changing computing landscape, an increasing number of corporations are filing for patent protection on cloud computing related technologies. Cloud computing patents, however, may be difficult to enforce in light of current Federal Circuit case law relating to the Joint Infringement Doctrine. Two cases, Akamai Technologies, Inc. v. Limelight Networks, Inc. and McKesson Technologies, Inc. v. Epic Systems Corp., decided by the Federal Circuit in 2010 and in …
Comparison Of Chinese And U.S. Patent Reform Legislation: Which, If Either, Got It Right?, 11 J. Marshall Rev. Intell. Prop. L. 567 (2012), Wayne C. Jaeschke, Zhun Lu, Paul Crawford
Comparison Of Chinese And U.S. Patent Reform Legislation: Which, If Either, Got It Right?, 11 J. Marshall Rev. Intell. Prop. L. 567 (2012), Wayne C. Jaeschke, Zhun Lu, Paul Crawford
UIC Review of Intellectual Property Law
Chinese patent law has a short history whereas the United States ("U.S.") system has a more robust history. This article chronicles important remaining differences between Chinese and U.S. patent laws including the utility model successfully employed at State Intellectual Property Office of the People’s Republic of China ("SIPO") and in the Chinese courts, but not available under U.S. law. Some differences are discussed in regard of patent appeals, reexaminations for invalidity, China’s lack of a reissue process to correct major errors, China’s inventors remuneration process and compulsory licensing of patents, and China’s unique requirement of post termination compensation to support …
The Paradox That Wasn't: Federal Preemption Of State-Law Voice Misappropriation Claims, 11 J. Marshall Rev. Intell. Prop. L. 694 (2012), Zachary M. Vaughan
The Paradox That Wasn't: Federal Preemption Of State-Law Voice Misappropriation Claims, 11 J. Marshall Rev. Intell. Prop. L. 694 (2012), Zachary M. Vaughan
UIC Review of Intellectual Property Law
There exists in the law of copyright preemption what some have identified as a paradox: that in certain cases involving claims for voice misappropriation in which a plaintiff’s voice has merely been imitated, claims have been allowed to proceed, while other cases that involve actual uses of a plaintiff’s voice—that is, samples from sound recordings—have been held to be preempted by the federal Copyright Act. This article argues that this apparent paradox is actually no conflict at all. After a brief background section, this article collects and explains cases, discusses the strengths and weaknesses of one possible harmonization of the …
Rights Of Joint Patent Owners In China, 11 J. Marshall Rev. Intell. Prop. L. 601 (2012), Yunling Ren, Yan Hong
Rights Of Joint Patent Owners In China, 11 J. Marshall Rev. Intell. Prop. L. 601 (2012), Yunling Ren, Yan Hong
UIC Review of Intellectual Property Law
In the past decade, Chinese courts began to recognize joint patent owners’ rights and obligations that are distinguishable from other proprietary property rights, but the law did not reflect these concerns. It was not until the Third Revision of the Chinese Patent Act in 2009 that the law recognized the existence of joint-ownership rights in patents. Part of the reason for this change was not only to conform to the standards of the international intellectual property community, but also to promote the commercialization of patented inventions and technology transfer. Article 15 of the Patent Act was added to allow joint-owners …
Fighting Poison With Poison? The Chinese Experience With Pharmaceutical Patent Linkage, 11 J. Marshall Rev. Intell. Prop. L. 623 (2012), Benjamin Liu
UIC Review of Intellectual Property Law
Countries after countries are adopting a controversial regulatory system of linking the market approval for pharmaceuticals to the status of potentially blocking patents as part of their bilateral and multilateral trade agreement package with the United States. Surprisingly, China took up pharmaceutical patent linkage in the absence of any treaty obligations and became the first country to adopt this regulatory regime outside of North America, despite the presence of a flourishing generics pharmaceutical industry and its developing country status. In fact, the Chinese regulation promised more intellectual property ("IP") protection than what even the United States FDA is capable of …
“There’S A Hole In The Bucket:” The Effective Elimination Of The Inequitable Conduct Doctrine,11 J. Marshall Rev. Intell. Prop. L. 717 (2012), Katherine E. White
“There’S A Hole In The Bucket:” The Effective Elimination Of The Inequitable Conduct Doctrine,11 J. Marshall Rev. Intell. Prop. L. 717 (2012), Katherine E. White
UIC Review of Intellectual Property Law
The year 2011 proved to be a momentous year in patent law. The doctrine of inequitable conduct was particularly rocked by changes to the law. Both the Federal Circuit’s decision in Therasense, Inc. v. Becton, Dickinson and Co. and the America Invents Act effectively gutted the inequitable conduct cause of action. Therasense tightened the materiality and intent standards, thus lowering the duty of candor standard that will be enforced in the courts. The America Invents Act created an escape clause for those who fail to disclose adequately during initial examination through the supplemental examination process. Did Congress and the Federal …
A New Institutional Economics Perspective On Trademarks: Rebuilding Post Conflict Zones In Sierra Leone And Croatia, 11 J. Marshall Rev. Intell. Prop. L. 745 (2012), Roya Ghafele, Benjamin Gibert
A New Institutional Economics Perspective On Trademarks: Rebuilding Post Conflict Zones In Sierra Leone And Croatia, 11 J. Marshall Rev. Intell. Prop. L. 745 (2012), Roya Ghafele, Benjamin Gibert
UIC Review of Intellectual Property Law
This paper evaluates the role of collective trademarks in enhancing the ability of tourism clusters to stimulate economic growth, local ownership and innovative governance. Illustrating how intellectual property (IP) law can be leveraged to achieve this, we offer a new economic rationale for trademarks in the context of tourism. Two post-conflict case studies of Sierra Leone and Croatia provide a crash test for this approach. By emphasizing the role of law, institutions and infrastructure in stimulating tourism in post-conflict zones, this paper echoes new institutional economics perspectives that highlight the impact of legal structure on development. Despite widespread acknowledgement of …
India’S Use It Or Lose It: Time To Revisit Trips?, 11 J. Marshall Rev. Intell. Prop. L. 797 (2012), Levon Barsoumian
India’S Use It Or Lose It: Time To Revisit Trips?, 11 J. Marshall Rev. Intell. Prop. L. 797 (2012), Levon Barsoumian
UIC Review of Intellectual Property Law
India is one of a number of countries which impose a “local working” requirement on patented inventions. This finds its source in sections 83, 84, and 89 of India’s Patent Act. A recent decision by the Controller of Patents granting a compulsory license to Natco for a Bayer-patented anti-cancer drug confirms that importation will not satisfy this requirement. Corporations seeking to produce and market products for international sale will receive varying degrees of patent protection from different nations. This comment proposes an amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) defining what local working requirements are …
Exploring Apple’S Ipad Trademark Blunder: Chinese Trademark Approval Procedure Is A Trademark Protection Safeguard Or Another National Protectionism?, 11 J. Marshall Rev. Intell. Prop. L. 777 (2012), Arthur Tan-Chi Yuan
UIC Review of Intellectual Property Law
It is well-reported that Apple’s iPad® product embodies technological advances that are protected by U.S. and foreign patents. One would also assume that it is protected by trademarks in various jurisdictions, including China. However, to this day, Apple struggles to prefect its iPad trademark rights in China, the second largest economy in the world. While the Chinese trademark registration approval process is different from that in the U.S. practice, such approval step is essential to every international corporation doing business in China. This article explains where Apple may have overlooked this step in the overall trademark registration process in China …
Cybersex: Protecting Sexual Content In The Digital Age, 11 J. Marshall Rev. Intell. Prop. L. 815 (2012), Nicole Chaney
Cybersex: Protecting Sexual Content In The Digital Age, 11 J. Marshall Rev. Intell. Prop. L. 815 (2012), Nicole Chaney
UIC Review of Intellectual Property Law
Advertisers employ bare-skinned models and sex appeal to seduce American consumers with every magazine, billboard, and television advertisement. The ubiquity of sexual gratification has reached a tangible quality in American culture, but sex is still somehow taboo in our legal system. Despite the vast market for online adult entertainment, obscenity laws have been used to strike down claims for adult content copyright owners. These content owners are producing creative sexual expression for the public benefit, but they are being denied the same economic incentives granted to their mainstream counterparts. Ironically, Playboy Co. is an outlier in the adult entertainment industry …
The Public Good V. A Monetary Profit: The News Organizations’ Utilization Of The Fair Use Doctrine, 11 J. Marshall Rev. Intell. Prop. L. 841 (2012), Frank J. Lukes
UIC Review of Intellectual Property Law
The main purpose of copyright law is to promote the arts and sciences for the public good. The secondary purpose of copyright law is to ensure the copyright holder retains a benefit for their work. Additionally, the Fair Use Doctrine allows a defense to an individual who uses the copyrighted work without permission, so long as a four-factor test under the Doctrine is properly met. The four factors this test analyzes are the Purpose Factor, The Nature of the Work Factor, The Amount Used Factor, and The Effect on the Market Factor. When news organizations have sought protection under the …
For Sale. Patents. Never Used: Gaps In The Tax Code For Patent Sales, 11 J. Marshall Rev. Intell. Prop. L. 859 (2012), Khurram Naik
For Sale. Patents. Never Used: Gaps In The Tax Code For Patent Sales, 11 J. Marshall Rev. Intell. Prop. L. 859 (2012), Khurram Naik
UIC Review of Intellectual Property Law
Patent sales are an underappreciated means of monetizing patents. Recent blockbuster patent sales indicate heightened demand for patent acquisitions. There is evidence that such patent sales transfer patents to parties more skilled in patent enforcement, reducing litigation. Patent sales also move capital to innovators, which enhance incentives to innovate. But crucially, C corporations do not benefit from advantaged tax treatment. Efforts by other nations to encourage patent use and sales by providing “patent box” preferential tax regimes may provide some guidance for remedying this gap in the tax code.
Back To The Future: Revisiting Zippo In Light Of "Modern Concerns", 29 J. Marshall J. Computer & Info. L. 231 (2012), David Swetnam-Burland, Stacy O. Stitham
Back To The Future: Revisiting Zippo In Light Of "Modern Concerns", 29 J. Marshall J. Computer & Info. L. 231 (2012), David Swetnam-Burland, Stacy O. Stitham
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
"Tinkering" With The First Amendment's Protection Of Student Speech On The Internet, 29 J. Marshall J. Computer & Info. L. 167 (2012), Steven M. Puiszis
"Tinkering" With The First Amendment's Protection Of Student Speech On The Internet, 29 J. Marshall J. Computer & Info. L. 167 (2012), Steven M. Puiszis
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
World Wide Web Of Love, Lies, And Legislation: Why Online Dating Websites Should Screen Members, 29 J. Marshall J. Computer & Info. L. 251 (2012), Maureen Horcher
World Wide Web Of Love, Lies, And Legislation: Why Online Dating Websites Should Screen Members, 29 J. Marshall J. Computer & Info. L. 251 (2012), Maureen Horcher
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
The 20th Belle R. And Joseph H. Braun Memorial Symposium: The Development Of Privacy Law From Brandeis To Today: Opening Remarks, 29 J. Marshall J. Computer & Info. L. 279 (2012), Ralph Ruebner, Leslie Ann Reis, David E. Sorkin
The 20th Belle R. And Joseph H. Braun Memorial Symposium: The Development Of Privacy Law From Brandeis To Today: Opening Remarks, 29 J. Marshall J. Computer & Info. L. 279 (2012), Ralph Ruebner, Leslie Ann Reis, David E. Sorkin
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Session I: The Legacy Of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012), Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne, Milton I. Shadur
Session I: The Legacy Of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012), Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne, Milton I. Shadur
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Session Ii: Historical Perspectives On Privacy In American Law, 29 J. Marshall J. Computer & Info. L. 319 (2012), Steven D. Schwinn, Alberto Bernabe, Kathryn Kolbert, Adam D. Moore, Marc Rotenberg
Session Ii: Historical Perspectives On Privacy In American Law, 29 J. Marshall J. Computer & Info. L. 319 (2012), Steven D. Schwinn, Alberto Bernabe, Kathryn Kolbert, Adam D. Moore, Marc Rotenberg
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.