Law Commons^™

Identification Of Trade Secret Claims In Litigation: Solutions For A Ubiquitous Dispute, Charles Tait Graves, Brian D. Range

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

A Realist Approach To Merck Kgaa V. Integra, Daniel A. Lev

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Metro-Goldwyn-Mayer V. Grokster: Unpredictability In Digital Copyright Law, Kent Schoen

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Injunctive Relief: A Charming Betsy Boomerang, Harold C. Wegner

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Intellectual Property Resources In And For Space: The Practitioner's Experience, Gary Myers

Faculty Publications

Today, our inquiry is timely because, increasingly, intellectual property law is becoming more important in space activities. The increasing sophistication of international cooperation and the growth of commercial and private space activities have brought intellectual property issues to greater prominence.

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …

Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff

GW Law Faculty Publications & Other Works

Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition and …

Moral Rights Protection In The United States And The Effect Of The Family Entertainment And Copyright Act Of 2005 On U.S. International Obligations, Brandi L. Holland

Vanderbilt Journal of Transnational Law

Alteration of a motion picture has become legal as a result of the Family Movie Act, an attachment to the Family Entertainment and Copyright Act approved by Congress and signed by the President in early-2005. The "family movie" provision, championed by U.S. Representative Lamar Smith, Chairman of the House Judiciary Committee's Internet and Intellectual Property Subcommittee, indemnifies any company that makes filtered versions of movies without authorization from the copyright owners. Proponents claim the bill is a way to put content-filtering back into the hands of individual families, while critics claim their copyrights are violated whenever a company redistributes their …

Motion Picture Piracy: Controlling The Seemingly Endless Supply Of Counterfeit Optical Discs In Taiwan, Stephen K. Shiu

Vanderbilt Journal of Transnational Law

Annually, Hollywood loses roughly $3.5 billion dollars in revenue to optical disc piracy in Taiwan. Optical disc piracy involves the camcording or copying of motion pictures onto laserdiscs, digital versatile discs, or video compact discs. Through the U.S. Trade Representative's satellite enforcement offices in Taiwan and coordination with the Taiwanese legislature and enforcement agencies, the U.S. motion picture companies have been able to influence some change in the frequency and severity of optical disc piracy in Taiwan. This can be mainly attributed to the Motion Picture Association of America's alliance with the U.S. Trade Representative in placing Taiwan on numerous …

Patent Buy-Outs For Global Disease Innovations For Low- And Middle-Income Countries, Kevin Outterson

Faculty Scholarship

Drug prices are uniquely susceptible to radical price reductions through generic competition. Patented pharmaceuticals may be priced at more than 30 times the marginal cost of production; the excess is the patent rent collected by the drug company while the patent and exclusive marketing periods remain. Patent rents are significant. AIDS drugs which sell for US$10,000 per person per year in the US are sold generically for less than US$200. If patented drugs could be sold at the marginal cost of production, cost effective treatments would become even more attractive, and other interventions would become affordable.

This Article proposes marginal …

The Impact Of Open Source On Preinvention Assignment Contracts, Michael Mattioli

Articles by Maurer Faculty

This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. …

Why We Are Confused About The Trademark Dilution Law, Christine Farley

Scholarly Articles in Law Reviews & Journals

In the decade following passage of a federal right of anti-dilution, the biggest question in trademark law was how to prove dilution. This is a clear sign of something. Can no smart attorney, judge, or social scientist figure out what dilution is in order to prove it? Dilution has proven to be a "dauntingly elusive concept" for the courts. Even in the Supreme Court, nearly all of the questions from the Justices In oral argument in Moseley v. V. Secret Catalog were seeking to simply understand what dilution is. Unless they simply know it when they see it, other courts …

The Doctrine Of Equivalents: Becoming A Derelict On The Waters Of Patent Law, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

The doctrine of equivalents expands the scope of patent protection in some circumstances to cover variations of the invention that are not within the literal terms of the claims. While there is no statutory basis for the doctrine of equivalents, and it has been characterized as an anomaly, the Supreme Court has repeatedly reaffirmed the doctrine over the past 150 years. Although the Supreme Court and the lower federal courts continue to recognize the doctrine of equivalents, they have not clearly defined the circumstances in which it is available, nor demarcated the extent to which it expands the scope of …

Champagne, Feta, And Bourbon: The Spirited Debate About Geographical Indications, Justin Hughes

Articles

Geographical Indications (GIs) are terms for foodstuffs that are associated with certain geographical areas. The law of GIs is currently in a state of flux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. This Article first examines the state of GIs throughout the world. The author then turns to the continuing debate between the European Union and other industrialized economies over this unique form of intellectual property. The European Union claims that increasing GI protection would aid developing countries, but, in …

An Analysis For The Valuation Of Venture Capital-Funded Startup Firm Patents, John Dubiansky

ExpressO

In an era where forces such as the Bayh Dole act and the rise of the venture capital industry are reshaping the manner in which innovations are brought to market, the role of intellectual property in the financing of new ventures is becoming increasingly important. The investment community requires a better understanding of the risks of patent-based transactions as such deals become more prevalent. This paper addresses that need by explaining an analysis for the valuation of startup firm-held patents. The paper considers the commonly employed methods of patent valuation, and offers an analysis which considers Legal, Technical, and Technology-Market …

Notes On A Marketplace For Ideas?, Wendy J. Gordon, Oren Bar-Gill, Gideon Parchomovsky

Scholarship Chronologically

The metaphor "a marketplace for ideas" is a prominent theme in First Amendment scholarship.2 In the First Amendment context, ideas provide the impetus for robust public debate, a foundational element of a democratic society. Ideas not only spark debate, but are an indispensable input in technological progress and innovation. While legal and economic scholarship has focused on patents, which protect inventions, little attention has been given to the sine qua non of invention, and therefore of patents: the underlying idea.

Intellectual Property Rights In Virtual Environments: Considering The Rights Of Owners, Programmers And Virtual Avatars, Woodrow Barfield

ExpressO

A virtual environment is a computer-generated world that can be used for training, data visualization, recreation, and commerce. The visitors of virtual environments include not only humans but also virtual avatars. The avatars can take on a range of shapes, characteristics, and personalities, and can perform a variety of tasks within the virtual environment. As the behavior of avatars becomes more realistic, sophisticated and intelligent- and the avatars become more autonomous in their decision making, the question of whether virtual avatars should have legal rights separate from those of their owner, becomes an issue. This paper discusses legal rights associated …

Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization …

Size Matters (Or Should) In Copyright Law, Justin Hughes

Articles

American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Copyright And Open Source Software Licensing, Sau Sheong Chang

ExpressO

The open source software movement has swept the software industry by storm in recent times, challenging many pre-conceptions about existing software development and licensing models. Copyright have protected software ownership and licensing of much of the closed source software in the market but how does copyright relate to open source software licensing? This dissertation describes the past and present of legal software protection and traces the history of the open source software movement from the Free Software Foundation and Open Source Initiative to the current state of the industry. The various open source licences are compared and explained. The discussion …

"Tools For Success": The Trips Agreement And The Human Right To Essential Medicines, Melissa Mcclellan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures And New Business Models Under E.U. And U.S. Law, Nicola Lucchi

ExpressO

The production of digital content is a phenomenon which has completely changed the conditions of access to knowledge. Within this framework it becomes even more important to find and to formulate a new settlement for intellectual property rights balancing contrasted rights. Owners of the old technology and policy makers have found two different solutions and remedies for intellectual property rights: legal and technological. When both remedies work together any rights that a consumer may have under copyright law could be replaced by a unilaterally defined contractual term and condition. To balance this inequity this article analyses different solutions under U.S. …

Introduction: Special Project - Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Protecting The Frontiers Of Biotechnology Beyond The Genome: The Limits Of Patent Law In The Face Of The Proteomics Revolution, J. Jason Williams

Vanderbilt Law Review

Scientific knowledge and invention rapidly accelerated in the past few decades, resulting in an untold number of broken barriers and realized benefits. In 2001, scientists announced that the human genome, consisting of 30,000 to 40,000 genes, had been fully characterized. Arguably one of the most important scientific breakthroughs in history, this accomplishment came far sooner than anyone could have anticipated. Fueled by the enormous marketing potential in finding causes and cures for many diseases, the biotechnology industry invested heavily in the project with the hope of maximizing control of genetic intellectual property and its potential downstream value.

While the genomic …

L'Affaire Huntsman C. Soderbergh Ou Le Droit D'Expurger Les Films, René Pépin

Canadian Journal of Law and Technology

Deux éléments nous motivent. D’abord, comme on le devine, la technologie évolue à un rythme rapide en ce domaine. On n’en est plus au temps où les films étaient produits unique- ment sur une véritable pellicule de plastique qu’un censeur pouvait insérer dans une machine qui lui permettait littéralement de couper des parties indésirables et de recoller les embouts. L’informatique a envahi ce domaine. Il y a maintenant des logiciels sophistiqués qui agissent comme interface entre un disque DVD et l’écran, permettant au consommateur de choisir lui-même les séquences qui seront enlevées dans un film. On comprend que ceci pose …

Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller

Scholarly Works

Claim construction jurisprudence is in disarray. The U.S. Court of Appeals for the Federal Circuit reverses trial court claim construction decisions at a worryingly high rate. The proportion of Federal Circuit claim construction opinions that include separate concurrences or dissents continues to grow. And the muddled mix of issues the Federal Circuit framed for en banc review in the Phillips case suggests that the court is having trouble reaching consensus on what the central questions are, much less on how to answer them. Perhaps the path to adequately predictable claim construction is continued tinkering with the analytical constructs internal to …

Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand and …

Special Project: Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Copyright Infringement And Poetry: When Is A Red Wheelbarrow The Red Wheelbarrow?, Jennifer Understahl

Vanderbilt Law Review

Copyright does not protect facts or ideas, but only an author's original expression. Often, though, it is difficult to distill protected expression from unprotected ideas or facts that reside in the public domain. Copyright protection for poetry is particularly problematic because a poem's ideas are often intertwined with a poem's sounds, shape, and images. It is often not only difficult to extract ideas from a poem's surface, but once ideas are "discovered," it may even be difficult to articulate exactly what these main ideas or themes are. William Carlos Williams' poem, The Red Wheelbarrow, one of the most famous twentieth …