Intellectual Property Law Commons^™

Lessons From Bilski, Haewon Chung

Canadian Journal of Law and Technology

In this paper, I will examine how the U.S. and Canadian courts have approached the patentability of intangible inventions and discuss whether any lessons can be learned from the U.S.’s patent dilemma. In section 2, I will review the American jurisprudence on patentability of intangible inventions. In section 3, I will discuss the potential impact Bilski may have on the American jurisprudence. Section 4 will assess the Canadian jurisprudence on patentability of intangible inventions. In section 5, I will discuss the Federal Court of Canada’s decision in Amazon/FCC. I argue that based on recent events in the American jurisprudence, Canadian …

Prohibiting Medical Method Patents: A Criticism Of The Status Quo, Mark S. Wilke

Canadian Journal of Law and Technology

Methods of medical treatment are not patentable in Canada. This means that inventions involving the performance of surgery, administration of medicine, or extraction of fluids or tissue for diagnostic tests cannot directly be protected under the current patent regime. However, this prohibition is not an absolute ban. Many medical innovations are patentable, including surgical tools and devices, drugs and other chemical compounds, medical “uses”, diagnostic assays and methods of treat- ing “natural” conditions. The practical reality is that the distinction between what is and what is not patentable is poorly defined. This uncertainty presents a steep challenge for inventors and …

Tax Implications For Non-Residents Conducting E-Commerce In Canada, Mike Nienhuis

Canadian Journal of Law and Technology

This paper focuses on taxation issues faced by non-resident e-commerce companies with no sustained presence in Canada apart from a web site. The tax liability of foreign corporations with a Canadian subsidiary, a physical Canadian office, or Canadian-based employees or agents will not be considered, even though there is substantial overlap in some of the relevant issues. By e-commerce companies we refer broadly to any firms conducting their primary business — whether business- to-business (B2B) or business-to-consumer (B2C) — by means of the internet.

In the first section we outline the framework for Canada’s taxation of non-residents conducting business in …

As Antitrust Case Ends, Microsoft Is Victorious In Defeat, Norman Hawker, Robert H. Lande

All Faculty Scholarship

As the final judgment in the celebrated Microsoft case ends, this piece very briefly assesses the impact of its remedy. When evaluated in terms of its most important goals, the remedy has proven to be a failure. Microsoft's monopoly power in the PC operating systems market is now as great as it was when the case was brought in 1998 or the remedy was ordered in 2002. The article also very briefly discusses the implications of this remedy for Google and AT&T.

Mobilizing User-Generated Content For Canada’S Digital Content Advantage, Samuel E. Trosow, Jacquelyn Burkell, Nick Dyer-Witheford, Pamela J. Mckenzie, Michael B. Mcnally, Caroline Whippey, Lola Wong

Research Day (Arts & Humanities, FIMS, and Education)

The goal of the Mobilizing User-Generated Content for Canada’s Digital Content Advantage project is to define User-Generated Content (UGC) in its current state, identify successful models built for UGC, and anticipate barriers and policy infrastructure needed to sustain a model to leverage the further development of UGC to Canada's advantage.

This poster session is based on the report, Mobilizing User-Generated Content For Canada’s Digital Advantage (http://ir.lib.uwo.ca/fimspub/21/) and is related to the Brown Bag presentation also presented on March 23, 2011 (http://ir.lib.uwo.ca/fimspres/11/).

Databases And Dynamism, Michal Shur-Ofry

University of Michigan Journal of Law Reform

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static "access to information" story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions …

Bugs For Sale: Legal And Ethical Proprieties Of The Market In Software Vulnerabilities, 28 J. Marshall J. Computer & Info. L. 451 (2011), Taiwo A. Oriola

UIC John Marshall Journal of Information Technology & Privacy Law

The pertinent questions therefore are: first, could software vulnerabilities be obviated simply by ameliorating factors responsible for market failure as canvassed by the literature on the economics of software security, drawing on the strength of the theory of information asymmetry, or are vulnerabilities inevitable irrespective of market dynamics and solutions? Second, to what extent is vulnerabilities research or the surreptitious exploitation of software vulnerabilities by hackers tantamount to trespass, and what are the legal implications, if any? Third, to what extent is the peddling of software vulnerabilities valid or enforceable in law? Fourth, what are the implications of software vulnerabilities …

The Amended Eu Law On Eprivacy And Electronic Communications After Its 2011 Implentation; New Rules On Data Protection, Spam, Data Breaches And Protection Of Intellectual Property Rights, 29 J. Marshall J. Computer & Info. L. 29 (2011), Vagelis Papakonstantinou, Paul De Hert

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Right Of Publicity: Is Behavioral Targeting Violating The Right To Control Your Identity Online?, 10 J. Marshall Rev. Intell. Prop. L. 811 (2011), Andrea Stein Fuelleman

UIC Review of Intellectual Property Law

Behavioral targeting (“BT”) is an advertising technique that receives a great deal of attention due in part to the balkanized self-regulatory policies that address consumer protection issues. The majority of the self-regulation policies, including the BT principles proposed by the Federal Trade Commission (“FTC”) focus on privacy issues but fail to discuss the impact BT may have on the right to control the commercial use of one’s identity. In discussing the right of publicity, many legal scholars agree that everyone has a right to control the commercial use of his or her identity, regardless of his or her status as …

Rebooting Trademarks For The Twenty-First Century, 49 U. Louisville L. Rev. 517 (2011), Doris E. Long

UIC Law Open Access Faculty Scholarship

Trademarks have long suffered from an "ugly stepsister" status in the realm of intellectual property. Quasi-market regulation tool, quasi-investment property; trademark's historical role as both consumer-information signifier and producer-investment asset has led to increasingly confusing dichotomous treatment under the Lanham Act. The potentially borderless markets of cyberspace, with their new marketing techniques and new competitive spaces, have only heightened this confusion. Stumbling attempts to extend protection for marks under the Lanham Act beyond traditional notions of trademark use and consumer confusion to encompass the investment protection side of trademarks, such as the development of federal dilution and anti-cybersquatting acts, only …

Fifteen Years Of Fame: The Declining Relevance Of Domain Names In The Enduring Conflict Between Trademark And Free Speech Rights, 11 J. Marshall Rev. Intell. Prop. L. 1 (2011), Jude A. Thomas

UIC Review of Intellectual Property Law

Domain name disputes have been the subject of substantial litigation, legislative action, and scholarly debate over the course of the past fifteen years. Much of the debate is the product of disagreement concerning whether trademark rights naturally extend into the domain name space and to what extent those rights are limited by principles of free speech. Gripe sites are paradigmatic examples of this debate. Society’s investment in defining these rights continues to grow, even as the relevance of domain names may be declining, due to: (1) changes in the way users locate content on the Internet; (2) the growth of …

Rights Versus Commerce: Balancing Online Trademark Policing With The Emerging Marketplace, 11 J. Marshall Rev. Intell. Prop. L. 217 (2011), Jessica L. Hilliard

UIC Review of Intellectual Property Law

In 2008, jeweler Tiffany & Co. (“Tiffany”) commenced an action against eBay after discovering that a significant amount of counterfeit Tiffany jewelry was being sold on the online auction house. Tiffany had previously used eBay’s Verified Rights Owner program to report the infringement and pursued enforcement actions against individual sellers. Nevertheless, Tiffany sued eBay for various causes of action, including contributory trademark infringement. The Second Circuit held that online service providers like eBay are not liable for contributory trademark infringement unless they have specific knowledge of particular instances of infringement. Due to the ruling, Tiffany bears the burden for policing …

Discovery In The Paperless World: How Speed And Ease Of Technology Has Slowed And Complicated The Process, John Prudhomme

SMU Science and Technology Law Review

No abstract provided.

Keynote Panel: What In The Heck Is Going On, Richard Hilleman, Evan Hirsch, Joseph Olin, Randy Pitchford

SMU Science and Technology Law Review

No abstract provided.

Privacy: Problems And Solutions, Jennifer Archie, Andrew S. Ehmke, Joshua Fairfield, Berin Szoka

SMU Science and Technology Law Review

No abstract provided.

The Effect Of Court Rulings On Business Development, Christopher Ferguson, Holt Foster, Sean F. Kane, Shane Mcgee

SMU Science and Technology Law Review

No abstract provided.

Digital Distribution: Is It Really Finally Here, Robert Brown, Shawn Freeman, Michael Klotz, Steve Nix, Tom Paquin

SMU Science and Technology Law Review

No abstract provided.

Jagex Ltd. V. Impulse Software: An Almost Big Win For Online-Gaming Software Developers, Holly Guest

SMU Science and Technology Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the 2010–2011 academic year.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Ian Lambeets

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its first issue of the 2011-2012 academic year. The Journal strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. Another year goes by and technology continues to advance, and not surprisingly, further immerses itself into our daily lives. The Journal believes it is our mission to recognize the practical effects the growth of technology has on society and to promote a relevant and timely discussion on these topics.

Software Wars: The Patent Menace, Andrew Nieh

NYLS Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Stephen J. Rancourt

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its Annual Survey issue of the 2010–2011 academic year. The Journal strives to find interesting and contemporary topics that bisect technology and the law, and publish authors who provide in-depth and practical analysis of these topics to the legal community and beyond. To that end, this year’s Annual Survey is devoted exclusively to the topic of electronic discovery. In the two years since the Journal last published on this important issue, the availability of electronic information has increased exponentially, courts have continued to struggle with the 2006 Amendments to …

From Music Tracks To Google Maps: Who Owns Computer-Generated Works?, Mark Perry, Thomas Margoni

Law Publications

Increasingly the digital content used in everyday life has little or no human intervention in its creation. Typically, when such content is delivered to consumers it comes with attached claims of copyright. However, depending on the jurisdiction, approaches to ownership of computer-generated works vary from legislated to uncertain. In this paper we look at the various approaches taken by the common law, such as in Canada, and the legislative approach taken in the United Kingdom. The options for how computer-generated works may be treated and suggestions for their best placement in copyright are discussed.

The Admissibility Of Electronic Business Records, Ken Chasse

Canadian Journal of Law and Technology

The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards …

Personalization, Analytics, And Sponsored Services: The Challenges Of Applying Pipeda To Online Tracking And Profiling Activities, Eloïse Gratton

Canadian Journal of Law and Technology

In 2008, the online advertising industry was found to be worth 27 billion dollars, a figure that was projected to double over the subsequent four years.1 The reason for this extraordinary market growth can be explained by two factors. To begin with, current technology now makes it possible to gather a great variety of information associated with a particular device or individual, including browsing history, which can be used to create a profile specific to that device or individual. This practice facilitates more personalized advertising, tailored to the interests and tastes of the consumer. Secondly, many online services, in the …

Interpreting Copyright Law And Internet Facts, Cameron Hutchison

Canadian Journal of Law and Technology

This paper probes interpretation issues elicited by the impact of digital technologies and the Internet on copyright law. The purpose of the paper is to instill a coherent framework for analyzing copyright law when it encounters Internet or digital facts. In part one, I propose a methodology of statutory interpretation that helps suitably adapt statutory language to technological developments. In essence it is this: courts should examine the language of the operative provision in its statutory context and in light of its purpose. A contextual interpretation of a broadly conceived rule can reveal a legislative intention that certain kinds of …

Approval Of New Pharmacogenomic Tests: Is The Canadian Regulatory Process Adequate?, Yann Joly, Emma Ramos-Paque

Canadian Journal of Law and Technology

In the first part of our analysis, we will examine the impact which pharmacogenomics is expected to have on drug research and development, on the drug approval process and on post-marketing surveillance and clinical practice. This will allow us to show how pharmacogenomic testing could be beneficial to drug companies, regulatory bodies, and patients. The second part of our analysis will focus on the regulatory framework applicable to the approval of pharmacoge- nomic tests in Canada, although we are aware of the fact that most manufacturers decide to approve their tests outside of Canada. As mentioned, the applicable regu- lations …

The Regulation Of Personal Health Record Systems In Canada, James Williams, Jens H. Weber-Jahnke

Canadian Journal of Law and Technology

This paper analyzes the regulatory regime for PHR systems in Canada. The first part of the paper consists of an introduction to some of the major issues associ- ated with these applications, with a focus on privacy, security, data quality, and interoperability. Following this preliminary discussion, the bulk of the analysis deals with the legal instruments that apply to PHR products developed by private sector organizations. Due to space constraints, the paper concentrates on legislative and regulatory instruments, deferring a discussion of the possible impacts of tort, product liability, and contract law on PHR systems. Despite this omission, it is …

Canada's Digital Economy Strategy: Toward An Openness Framework, Michael Geist

Canadian Journal of Law and Technology

This essay is an expanded version of my submission to the digital economy consultation. It opens with general issues such as digital policy leadership, cost issues, and emphasizes the need for a principle-based strategy that embraces the benefits associated with “open,” whether open access, open spectrum or open data. It then provides specific recommendations on a wide range of issues including tele- communications policy, privacy, and copyright.

The Intel And Microsoft Settlements, Robert H. Lande

All Faculty Scholarship

This article briefly compares and contrasts the recent U.S. Federal Trade Commission's antitrust settlement with Intel, and the antitrust cases brought against Microsoft. The article praises the FTC's settlement with Intel, and predicts that history will judge it very favorably compared to the settlement by the U.S. Department of Justice of its antitrust case against Microsoft.