Intellectual Property Law Commons^™

Law As Film: Representing Justice In The Age Of Moving Images, Shulamit Almog, Ely Aharonson

Canadian Journal of Law and Technology

Two main theses are presented here. The first is that there is a conceptual resemblance between the ways in which messages are transmitted in the courtroom and the ways in which they are transmitted in the cinema. The second is that the evolution of legal procedure is being influenced by developments taking place in visual culture generally and film specifically. Taken together, these theses lead to the conclusion that the development of a theory of ‘‘law-as-film’’ can provide insights into the contemporary practice of law that might otherwise be overlooked.

Musical Copyright Law: Past, Present And Future Of Online Music Distribution, Robert J. Delchin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Adr Of Patent Disputes: A Customized Prescription, Not An Over-The-Counter Remedy, Marion M. Lim

Cardozo Journal of Conflict Resolution

Eureka! DoubleMe Corporation just discovered "Clone-IT." Believing "Clone-IT" to be the first invention of its kind, DoubleMe invested a great deal of resources into its inventive efforts and kept its research and experiments top secret. After DoubleMe completed the necessary paperwork and paid the requisite fees, the United States Patent and Trademark Office issued it a patent for "Clone-IT."

The New Technology Transfer Block Exemption: A Welcome Reform, After All, Maurits Dolmans, Anu Bradford

Faculty Scholarship

This article discusses the most important changes introduced at the final stage of the Commission's review of the technology transfer block exemption regulation (“TTBER"), and examines the benefits and the challenges of the new regulatory framework for technology licensing.

The new TTBER represents a significant improvement over the Commission's draft TTBER, published in October 2003. Most importantly, the Commission agreed to revise the list of hardcore restrictions between competitors, which was over-inclusive and had the potential to seriously hinder technology licensing in horizontal agreements. In addition, the list of hardcore restrictions between non-competitors and the interpretation of "know-how'' (and thus …

The Software Patent Experiment, Robert M. Hunt, James Bessen

Faculty Scholarship

Over the past two decades, the scope of technologies that can be patented has been expanded to include many items previously thought unsuitable for patenting, for example, computer software. Today, the U.S. Patent and Trademark Office grants 20,000 or more software patents a year. Conventional wisdom holds that extending patent protection to computer programs will stimulate research and development and, thus, increase the rate of innovation. In this article, Bob Hunt and Jim Bessen investigate whether this has, in fact, happened. They describe the spectacular growth in software patenting, who obtains patents, and the relationship between a sharp focus on …

The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang

Duke Law & Technology Review

The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."

Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander

Duke Law & Technology Review

Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.

U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen

Duke Law & Technology Review

With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?

Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller

Duke Law & Technology Review

In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.

3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby

Duke Law & Technology Review

With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.

Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon

Duke Law & Technology Review

Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student's position in the creative process.

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang

Duke Law & Technology Review

Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.

Technological Protection Measures In The United States, The European Union And Germany - How Much Fair Use Do We Need In The "Digital World"?, Wencke Baesler

ExpressO

This article analyzes the different approaches of the United States and the European Union in the EU Copyright Directive towards the protection of technological protection measures against circumvention. The European and German laws have a radically different approach to fair use that heretofore has not been satisfactorily examined. It is a basic principle of copyright law in the European countries not to provide for a broad fair use exception, but to enumerate specific uses that are excluded from the copyright owner’s right to intervene. However, mostly payment of a reasonable compensation is required. This system is preserved in the recently …

Intellectual Property Laws In Harmony With Nafta: The Courts As Mediators Between The Global And The Local, Myra J. Tawfik

Canadian Journal of Law and Technology

This paper will argue that domestic courts can pro- vide a forum within which to mediate between these two extremes, to reconcile the ‘‘global’’ and the ‘‘local’’ — but that the courts themselves must adapt to meet the challenges that globalization places upon them. More specifically, the paper begins by setting out a framework for understanding harmonization of laws under NAFTA as one that encourages rather than eliminates diversity of law. The paper then studies the prevailing approaches to statutory interpretation that Canadian courts, most especially the Supreme Court of Canada and the Federal Court of Appeal, have been employing …

Computer Law By George S. Takach (Toronto: Irwin Law Inc., 2000, 2nd Edition), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Banning Bans On New Reproductive And Novel Genetic Technologies, Matthew Herder

Canadian Journal of Law and Technology

Commentators argue that statutory prohibitions with the force of the criminal law should not be used to regulate new reproductive technologies (NRTs) and novel genetic technologies (NGTs). Bill C-13, the Assisted Human Reproduction Act, however, codifies 10 criminal bans. This paper considers the merits of the various arguments levied against Bill C-13, and the corollary claim that only a "non-prohibitive" model of legislation befits NRTs and NGTs. Three types of arguments are used to critique criminal bans: (1) "Structural" arguments hinge on the constraints of the Canadian legal system - legislation complete with prohibitions runs afoul of the Constitution Act …

Anonymity And The Supreme Court's Model Of Expression: How Should Anonymity Be Analysed Under Section 2(B) Of The Charter?, Peter Carmichael Keen

Canadian Journal of Law and Technology

The first part of this article will discuss what anonymity is, and the costs and benefits that anonymity confers on expressive activity. I will demonstrate that anonymity is a double-edged sword in that it can both promote and harm free expression. In the second part, I will suggest that there is no doubt that anonymity can be protected under section 2(b) of the Charter. When I first began this article, I intended to examine ‘‘whether’’ anonymity can be constitutionally protected under section 2(b). As my research progressed, I quickly realised that I was asking the wrong question. I discovered that …

Student Protector, Internet Provider, Or Contractual Party? An Examination Of The Legal Relationship Between A University And Its Students, Anna Christine Milot

Canadian Journal of Law and Technology

The legal relationship between a university and its students is becoming increasingly complex as the use of technology spreads. Accordingly, it is important to define a university’s responsibilities and legal boundaries in order to understand the liability universities can potentially incur when dealing with students. Each Canadian university is unique in its founding and enacting legislation, as will be discussed further later. The individuality of Canada’s universities means that the questions raised in this paper cannot be given answers that can necessarily be generalized across universities. The approach to analysis in this paper, however, is applicable to any of the …

Technology And International Trade: Wille The Real Transformer Please Stand Up?, Todd Weiler

Canadian Journal of Law and Technology

The primary driver of change in Canada’s cultural sector has not been some kind of contrived, neo- liberal plot imposed upon an unsuspecting public with the promise of ‘‘jobs, jobs, jobs.’’ Rather, it has been technology. The role for liberalised trade and investment treaties comes only in the form of a conditioning force, limiting the panoply of choices available to govern- mental officials who want to respond to the changes being wrought by technological advances.

This paper begins with some brief definitions, moving next to an elaboration of its thesis, and finally explaining the application of this thesis to some …

Monopoly Power In The Electronic Information Industry: Why, And So What?, Curt A. Hessler

ExpressO

This "law and economics" article diagnoses why monopoly power infects so many markets in the electronic media, communications, and information technology industries (collectively the "Industry"),and recommends changes to prevailing intellectual property and antitrust doctrines to remedy this problem.

The analysis focuses on a single "norm" -- the maximization of economic value, as defined by standard welfare economic theory. Identifying three distinct functions that operate throughout this otherwise diverse Industry -- authoring, publishing, and distribution -- the article notes that two economic peculiarities characterize most Industry markets: the technical feasibility of "non-rivalrous use" of digitized information products, and the frequent "creative …

Sealing The Coffin On The Experimental Use Exception, Jennifer Miller

Duke Law & Technology Review

In a petition for writ of certiorari, Duke University requests that the Supreme Court reverse a Federal Circuit holding that, in its view, "seals the coffin on the experimental use exception for private universities." This iBrief discusses the Federal Circuit's decision in Madey v. Duke University and its possible effects on the progress of science.

Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans

Michigan Law Review

In the decade leading up to the twenty-first century, the number of Internet-related legal disputes grew exponentially. This growth continues into the new millennium, introducing old problems in a new context. For instance, in the field of copyright, Eric Eldred, the operator of a website dedicated to posting literary works already in the public domain, challenged the Copyright Term Extension Act ("CTEA"). The CTEA blocked his plans to post works copyrighted in 1923, works which under the previous statute would have entered the public domain in 1999. Looking to trademark law, the field has become obsessed of late with providing …

Fast Track Trade Authority And The Free Trade Agreements: Implications For Copyright Law, Samuel Trosow

Canadian Journal of Law and Technology

In 2002, Congress passed the Bipartisan Trade Promotion Authority Act, which restored the presidential fast-track trade-promotion authority that had lapsed in 1994. Fast-track trade promotion authority is a means by which Congress delegates to the president a portion of its constitutional authority over international trade policy. This paper reviews the development, scope, and application of fast-track trade-promotion authority, evaluates some of the copyright provisions in key Free Trade Agreements, and concludes that the process has been effectively captured by the information and entertainment industries. There are numerous negative consequences that flow from the resulting policy environment. Not only is an …

Rescuing The Balance?: An Assessment Of Canada's Proposal To Limit Isp Liability For Online Copyright Infringement, Scott Nesbitt

Canadian Journal of Law and Technology

This paper attempts both to explain the technological and legal imperatives pressing Canada to address the issue of ISP liability in reforms to the Copyright Act and to raise some concerns about the impact of the government’s proposed amendments in this area. The basic elements of copyright law, the impact of digital technology on copyright and the policy arguments surrounding ISP liability are briefly discussed to set the context for judicial treatment of and legislative action on this issue. Next, the paper focuses on the development of American jurisprudence with respect to limitation of ISP liability for third party copyright …

Patent First, Litigate Later! The Scramble For Speculative And Overly Broad Genetic Patents: Implications For Access To Health Care And Biomedical Research, Ikechi Mgbeoji, Byron Allen

Canadian Journal of Law and Technology

This paper will not directly address the ethical considerations of allowing patents on human genetic sequences, although this continues to be a controversial debate in itself. Rather, the aim is to consider the legality of such gene patents and the effects such patents have on biomedical research and health care delivery in definitive terms through an analysis of current developments and research relating to the subject. The operation of current intellectual property regimes regulating such patents will be examined, and amendments to these legal systems will be considered. An emphasis will be placed on identifying practical concerns rather than broad, …

Beyond Convergence And The New Media Decisions: Regulatory Models In Communications Law, Melanie Mortensen

Canadian Journal of Law and Technology

While technological and economic changes have been the most influential factors in stimulating recent policy and regulatory reassessments in Canada with respect to telecommunications and broadcasting regulation, public interest and socio-political concerns should also remain significant in the design of new regulatory and policy responses to convergence and competition. When the CRTC announced that it would refrain from regulating broadcasting in new media for a period of five years, this occasion illustrated the increasing inapplicability of the sector-specific legislation from which the mandate of the CRTC is derived.

The first model addressed is the present sector-specific policy and regulatory treatment …

Software Patent Law: United States And Europe Compared, Michael Guntersdorfer

Duke Law & Technology Review

Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.

Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig

Duke Law & Technology Review

A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, "a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se." Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. …

Patenting Genome Research Tools And The Law., Rebecca S. Eisenberg

Articles

Patenting genes encoding therapeutic proteins was relatively uncontroversial in the early days of biotechnology. Controversy arose in the era of high-throughput DNA sequencing, when gene patents started to look less like patents on drugs and more like patents on scientific information. Evolving scientific and business strategies for exploiting genomic information raised concerns that patents might slow subsequent research. The trend towards stricter enforcement of the utility and disclosure requirements by the patent offices should help clarify the current confusion.