Law Commons^™

Remade In China: What Does Recycling Tell Us About The Chinese Patent System?, 82 Umkc L. Rev. 887 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

What can we expect of China's patent law during the tenure of President Xi Jinping? This article proffers a partial answer to this broad question through the close reading of patent allegations against Chinese refurbishers and recyclers. Although the doctrinal issues presented are specific, these disputes occupy a policy space where competing goals of development tear a slit in the glossy exterior of the “Chinese Dream” meme that comes to represent Xi's administration, a slit through which we may gain some insight into the direction of IP development in China.

In the process of domesticating a legal regime originated from …

Functional Elements In Patent Claims, As Construed By The Patent Trial And Appeal Board (Ptab), 13 J. Marshall Rev. Intell. Prop. L. 251 (2014), Tom Brody

UIC Review of Intellectual Property Law

Claims in patents include both structural elements and functional elements. Functional elements occur in various categories: (1) Functional elements that mandate a particular range of structures that are able to perform the required function; (2) Functional elements that mandate a particular cooperation between structures; (3) Compound noun/function functional elements, (4) Active-type functional elements; (5) “Capable of”-type functional elements, (6) Single-word structural elements that are typical nouns, but that are also functional elements, e.g., “plasticizer,” and (7) Quasi-functional elements that lack any patentable weight. This article discloses which of these types of functional elements confers the broadest claim scope, and which …

Review And Reflection: Copyright Hearings And Related Discourse In The Nation’S Capital, 13 J. Marshall Rev. Intell. Prop. L. 487 (2014), Maria A. Pallante

UIC Review of Intellectual Property Law

On February 28, 2014, the Register of Copyrights of the United States and Director of the U.S. Copyright Office Maria A. Pallante delivered a keynote speech on the copyright hearings and related discourse in the nation’s capital. The speech was given at The John Marshall Law School’s 58th Annual Intellectual Property Conference. This article is based on her speech at the Conference.

Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, 13 J. Marshall Rev. Intell. Prop. L. 341 (2014), Giancarlo F. Frosio

UIC Review of Intellectual Property Law

For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies that regulate creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and re-use. From the Platonic mimesis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation—even plagiarism—and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from …

Aerevolution: Why We Should, Briefly, Embrace Unlicensed Online Streaming Of Retransmitted Broadcast Television Content, 13 J. Marshall Rev. Intell. Prop. L. 577 (2014), Bradley Ryba

UIC Review of Intellectual Property Law

The United States has long recognized broadcast television programming’s importance to the public’s information and entertainment needs. Accordingly, Congress has historically offered strong copyright protections for broadcast television networks. Those strong protections allowed broadcast networks to withstand business threats from innovations like cable television and VCRs. However, Congress’ recent silence on DVRs and cloud computing technology has allowed an entrepreneur to create the networks’ next biggest threat, Aereo. The creators of Aereo and similar businesses designed their services specifically around ambiguities within copyright law that could allow them to transmit networks’ content without paying the otherwise necessary consent fees. These …

Does Reckless Indifference Suffice For A Cancellation Proceeding Predicated On Fraud?, 14 J. Marshall Rev. Intell. Prop. L. 50 (2014), Tal Benschar, Milton Springut

UIC Review of Intellectual Property Law

The Lanham Act provides for cancellation of a trademark “registration [that] was obtained fraudulently.” 15 U.S.C. § 1064(3) (2012). The Federal Circuit has held that such requires a showing of a subjective intent to deceive the Trademark Office. In re Bose Corp., 580 F.3d 1240, 1243, 91 U.S.P.Q.2d (BNA) 1938 (Fed. Cir. 2009). However, the Bose court left open whether reckless disregard for the truth suffices to make out a case of fraud. This article answers that question in the affirmative. We show that at common law, reckless disregard for the truth has long been recognized as sufficient to make …

3(D) View Of India’S Patent Law: Social Justice Aspiration Meets Property Rights In Novartis V. Union Of India & Others, 13 J. Marshall Rev. Intell. Prop. L. 719 (2014), Saby Ghoshray

UIC Review of Intellectual Property Law

Not many constitutional decisions from developing countries find themselves at the center of global debate like the Indian Supreme Court’s Novartis decision invalidating the Gleevec patent. The patent was invalidated under amended Section 3(d) of the Indian Patents Act, which was amended to address some of the concerns of imbalance between the maximalist and minimalist cultures in the pharmaceutical context. Section 3(d) of the Indian Patent Act introduced a new threshold of patent eligibility for pharmaceutical innovation that requires applicants to demonstrate enhanced efficacy of their products. The objective of this Article is to get beyond the reactionary reviews of …

E-Discovery: Reasonable Search, Proportionality, Cooperation, And Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy L. 433 (2014), Steven Bennett

UIC John Marshall Journal of Information Technology & Privacy Law

Rule 26(g)(1)(A) of the Federal Rules of Civil Procedure (the “Federal Rules”) requires that an attorney responding to a discovery request verify by signature, after “reasonable inquiry,” that the disclosure is, to the best of the attorney’s knowledge, “complete and correct.” In a digital environment, with masses of data in multiple formats and locations, the determination of whether a “reasonable” effort to meet the completeness requirement has occurred may turn on an assessment of the practices used to conduct a search of electronic materials. Those practices, in turn, must be judged on a standard of “proportionality” (i.e., that the effort …

From Morris To Nosal: The History Of Exceeding Authorization And The Need For A Change, 30 J. Marshall J. Info. Tech. & Privacy L. 465 (2014), Vasileios Karagiannopoulos

UIC John Marshall Journal of Information Technology & Privacy Law

This Article discusses and examines the various cases that pertain to the issue of exceeding authorized access throughout the years from United States v. Morris to the recent United States v. Nosal. Further, this Article thoroughly examines the Ninth Circuit’s approach regarding the issue of exceeding authorization; specifically, the need for the Ninth Circuit’s narrower interpretation in United States v. Brekka and Nosal. Finally, this Article proposes an alternative phrasing for the term “exceeding authorization,” and a revised interpretation of the phrase and the relevant offenses under the Computer Fraud and Abuse Act. This recommended interpretation suggests establishing different degrees …

Cloud Computing, Regulatory Compliance, And Student Privacy: A Guide For School Administrators And Legal Counsel, 30 J. Marshall J. Info. Tech. & Privacy L. 511 (2014), Steve Mutkoski

UIC John Marshall Journal of Information Technology & Privacy Law

Rapid change in the technology landscape has resulted in the introduction of a range of new technologies into the classroom. But unlike the past use of technology in schools, many of these new products and services introduce two new dynamics that school counsel (and the teachers and administrators they support) need to understand fully. First, many of these new products and services are run “in the cloud” by a third party service provider as opposed to on servers operated by the school’s information technology (IT) staff. This third party operation and control can raise important new regulatory compliance issues, including …

“Bring Your Own Glass”: The Privacy Implications Of Google Glass In The Workplace, 30 J. Marshall J. Info. Tech. & Privacy L. 607 (2014), Anisha Mehta

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Bitcoins: Technological Innovation Or Emerging Threat?, 30 J. Marshall J. Info. Tech. & Privacy L. 535 (2014), R. Joseph Cook

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Problems With Prism: How A Modern Definition Of Privacy Necessarily Protects Privacy Interests In Digital Communications, 30 J. Marshall J. Info. Tech. & Privacy L. 571 (2014), Adam Florek

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Control Over Personal Data, Privacy And Administrative Discretion In Europe And The Usa: The Paradox Of Italian “Data Protection Authority”, 30 J. Marshall J. Info. Tech. & Privacy L. 721 (2014), Marco Quiroz Vitale

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Right To Travel And Privacy: Intersecting Fundamental Freedoms, 30 J. Marshall J. Info. Tech. & Privacy L. 639 (2014), Richard Sobel

UIC John Marshall Journal of Information Technology & Privacy Law

As a fundamental right inherent in American citizenship and the nature of the federal union, the right to travel in the United States is basic to American liberty. The right precedes the creation of the United States and appears in the Articles of Confederation. The U.S. Constitution and Supreme Court recognize and protect the right to interstate travel. The travel right entails privacy and free domestic movement without governmental abridgement.

In the era of surveillance, the imposition of official photo identification for travel, watchlist prescreening programs, and invasive airport scans and searches unreasonably burden the right to travel. They undermine …

Uncle Sam Knows What’S In Your Medicine Cabinet: The Security And Privacy Protection Of Health Records Under The Hitech Act, 30 J. Marshall J. Info. Tech. & Privacy L. 667 (2014), Ranjit Janardhanan

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Where Has Privacy Gone? How Surveillance Programs Threaten Expectations Of Privacy, 30 J. Marshall J. Info. Tech. & Privacy L. 795 (2014), Michael Greene

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Now You See It, Now You Don’T . . . Or Do You?: Snapchat’S Deceptive Promotion Of Vanishing Messages Violates Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014), Danielle Young

UIC John Marshall Journal of Information Technology & Privacy Law

This Comment will explore the recently popular application Snapchat, and discuss the ways in which the app's privacy policy has violated FTC regulations, responding to a recent complaint filed by The Electronic Privacy Center. Particularly, this Comment will focus on Snapchat's deceptive promotion of "disappearing" photographs and videos. Section II will illustrate the basic structure of Snapchat, detailing various illustrations of its use. Section II will also examine the regulations set forth by the FTC that Snapchat is required to follow. Section III will discuss possible methods that the average user can do in order to bypass the very thing …

The Policing Of Religious Marriage Prohibitions In Israel: Religion, State, And Information Technology, 31 J. Marshall J. Info. Tech. & Privacy L. 23 (2014), Akiva Miller

UIC John Marshall Journal of Information Technology & Privacy Law

The State of Israel applies religious law in all matters of marriage and divorce. For the Jewish population of Israel, the law of marriage includes religious prohibitions on certain kinds of marriages, most notably the prohibition against intermarriage and the prohibition against marrying a mamzer. Over the years, Israel‘s state-religious authorities have adopted a variety of methods and practices for policing these prohibitions. These include stringent procedures for premarital registration inquiries; use of databases for collecting information on prohibited persons; recording the possibility of mamzer status of newborn children; special Beit Din proceedings for handling cases of possible marriage prohibitions; …

California’S Eavesdropping Law Endangers Victims Of Domestic Violence, 31 J. Marshall J. Info. Tech. & Privacy L. 57 (2014), John E.B. Myers

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Canada’S Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1 (2014), Emir Crowne, Stephanie Provato

UIC John Marshall Journal of Information Technology & Privacy Law

On December 15th, 2010, the Government of Canada agreed to Bill C-28, the Fighting Internet and Wireless Spam Act, with the intent to “deter the most damaging and deceptive forms of spam… from occurring in Canada and to help to drive out spammers.” Canada‟s Anti- Spam Legislation (“CASL”) was born. Although CASL has only been in force since July 1st, 2014, we argue that the Act may not survive constitutional scrutiny as it unduly restricts freedom of speech.

The Online Gun Marketplace And The Dangerous Loophole In The National Instant Background Check System, 30 J. Marshall J. Info. Tech. & Privacy L. 757 (2014), Ann Daniels

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Shutting Down The Ex Parte Party: How To Keep Bittorrent Copyright Trolls From Abusing The Federal Court’S Discovery System, 31 J. Marshall J. Info. Tech. & Privacy L. 105 (2014), Jennifer L. Hunter

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Ethical Implications Of Cloud Computing For Lawyers, 31 J. Marshall J. Info. Tech. & Privacy L. 71 (2014), Stuart Pardau, Blake Edwards

UIC John Marshall Journal of Information Technology & Privacy Law

This paper aims to isolate the pertinent ethical issues of cloud computing and chart a sensible path forward for lawyers. Part II briefly introduces the concept of cloud computing. Part III discusses the lawyer‟s duties of confidentiality, of competence, to protect client property, and to oversee non-lawyers who are providing assistance. Part III also examines the application of these duties by the various state bar associations to the problem of cloud computing. Part IV looks at sample terms of use of some of the more popular vendors. Part V suggests that securing informed consent, employing specialty cloud providers, and purchasing …

The Right To Be Forgotten: Forced Amnesia In A Technological Age, 31 J. Marshall J. Info. Tech. & Privacy L. 133 (2014), Robert Bolton

UIC John Marshall Journal of Information Technology & Privacy Law

In the modern era, the connection between technology and one’s personal life has increased the number of moments recorded for posterity. While in many circumstances this is an ideal opportunity for fond recollection, it has the downside of displaying for others our less flattering moments. Because the Internet has such a wide scope, once something has entered its domain, it is virtually impossible to permanently remove. With a public increasingly perceiving this winnowing of privacy as a negative tendency, legislators both at home and abroad have made proposals that attempt to place restrictions on what content social media is allowed …

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 31 J. Marshall J. Computer & Info. L. 237 (2014), Adam Florek, Anisha Mehta, Danielle Young, Michael Greene

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Bulk Telephony Metadata Collection And The Fourth Amendment: The Case For Revisiting The Third-Party Disclosure Doctrine In The Digital Age, 31 J. Marshall J. Info. Tech. & Privacy L. 191 (2014), Timothy Geverd

UIC John Marshall Journal of Information Technology & Privacy Law

This Article argues that federal courts should seize the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment jurisprudence. Specifically, this Article argues that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age, and that instead, Smith should apply more narrowly in the digital age. In so arguing, this Article advocates that courts apply a modified, twostep test to evaluating third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith …

Eyes On The Road Program In Taiwan―Information Privacy Issues Under The Taiwan Personal Data Protection Act, 31 J. Marshall J. Info. Tech. & Privacy L. 145 (2015), Chen-Hung Chang

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Petitioner, 31 J. Marshall J. Computer & Info. L. 251 (2014), Amany Awad, Kelly O'Neill, Arlo Walsman

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Respondent, 31 J. Marshall J. Computer & Info. L. 285 (2014), Sara Schroeder, Austin Hoffman, Becky Fey

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.