Intellectual Property Law Commons^™

The New Madison Approach To Antitrust Law And Intellectual Property Law, Anita Alanko

Catholic University Journal of Law and Technology

The New Madison Approach has recently been introduced by the Department of Justice Antitrust Division in an effort to address a weakening of patent rights in recent years. The approach has four premises: patent hold-up is not an antitrust problem, standard setting organizations should better protect against patent hold-out to ensure maximum incentives to innovate, patent holder injunction rights should be protected and not limited, and a unilateral and unconditional refusal to license a valid patent should be per se legal. After providing an introduction to the relevant law and terms of art, support and criticism of the New Madison …

The International Intellectual Property Commercialization Council’S 3rd Annual U.S. Conference: The State Of Innovation In The Union, Jeffery P. Langer, Neel Sukhatme, Paul R. Zielinski, G. Nagesh Rao, Pj Bellomo, Matthew Byers, Meghan Gaffney Buck, Everardo Ruiz, Andrei Iancu, Patrick Kilbride, Carl J. Schramm, Colman Ragan, Ami Patel Shah, Randall R. Rader

Catholic University Journal of Law and Technology

The International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of …

Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan

Marquette Intellectual Property Law Review

Recently, Congress has considered legislation to amend § 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court’s precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway with a subcommittee of the Senate holding numerous roundtables and hearings on the subject.

This article considers some less-discussed consequences of that draft leg- islative proposal. The legislation likely opens the door to patenting …

American Privacy Law At The Dawn Of A New Decade (And The Ccpa And Covid-19): Overview And Practitioner Critique, Kimberly Dempsey Booher, Martin B. Robins

Marquette Intellectual Property Law Review

No abstract provided.

Tracing The Evolution Of Standards And Standard-Setting Organizations In The Ict Era, Manveen Singh

Marquette Intellectual Property Law Review

No abstract provided.

Patent Owners Face Unknown Arguments As To Whether Ipr Estoppel Attaches To Physical Products, 19 Uic Rev. Intell. Prop. L. 328 (2020), Christian Karpinski

UIC Review of Intellectual Property Law

When challenging a patent in an inter partes review (“IPR”), petitioners are limited to arguing that the patent is anticipated or obvious based on existing patents and printed publications. According to 35 U.S.C. § 315(e)(1) and (2), a petitioner in an IPR that results in a final written decision (FWD) may not raise in the USPTO or a civil action or an ITC proceeding “any ground that the petitioner raised or reasonably could have raised during that inter partes review.” But, what if a prior art physical product is cumulative of a printed publication raised in an IPR? Courts have …

Blockchain And Smart Contract For Peer-To-Peer Energy Trading Platform: Legal Obstacles And Regulatory Solutions, 19 Uic Rev. Intell. Prop. L. 285 (2020), Joseph Lee, Vere Marie Khan

UIC Review of Intellectual Property Law

This paper discusses the implications of smart contracts in energy trading for the protection of consumer and individual rights. It examines the legal risks and regulatory solutions for a peer-to-peer energy trading platform (P2P-ETP) in creating a sustainable energy ecosystem. Part I discusses the conceptual framework of P2PETP, which enables consumers to become energy ‘producers' and traders. Smart technologies—smart contracts, smart meters, and distributed ledger technology (DLT) platforms, are the main components of this platform. The study examines the legal basis for these components. Part II analyzes the legal uncertainty of the smart contract, such as its enforceability, and the …

Extraterritoriality And The Active Inducement Of Infringement, 19 Uic Rev. Intell. Prop. L. 204 (2020), Robert Stier

UIC Review of Intellectual Property Law

In Merial Ltd. v. Cipla Ltd., the Federal Circuit held that actions taken outside the United States might make a foreign defendant liable for induced infringement of a US patent under § 271(b) of the Patent Act. This article questions whether Merial remains good law after the Supreme Court’s 2018 decision in WesternGECO LLC v. ION Geophysical Corp. There, the Supreme Court held that lost profits from foreign sales were recoverable under § 284 of the Patent Act when they resulted from acts of domestic patent infringement. In reaching that decision, the Court applied the test from RJR Nabisco, Inc. …

Mural Mural On The Wall: Revisiting Fair Use Of Street Art, 19 Uic Rev. Intell. Prop. L. 267 (2020), Madylan Yarc

UIC Review of Intellectual Property Law

Mural mural on the wall, what’s the fairest use of them all? Many corporations have taken advantage of public art to promote their own brand. Corporations commission graffiti advertising campaigns because they create a spectacle that gains traction on social media. The battle rages on between the independent artists who wish to protect the exclusive rights over their art, against the corporations who argue that the public art is fair game and digital advertising is fair use of art. The Eastern Market district of Detroit is home to the Murals in the Market Festival. In January 2018, Mercedes Benz obtained …

Can An Improved Disclosure Mechanism Moderate Algorithm-Based Software Patentability In The Public Interest?, Vinicius Sala

Cybaris®

No abstract provided.

Welcome To The World Of Tomorrow: An Exploration Of Cell-Based Meats And How The Fda And Usda May Protect Intellectual Property Rights, Sean A. Grafton

Catholic University Journal of Law and Technology

Lab-grown meats are ready to be sold in United States markets. However, the meat product needs approval from regulators such as the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”). The regulation approval process takes a significant amount of time. This approval period will cut into the lab-grown meat producers’ patent time, rendering a period of the patent ineffective.

This Comment analyzes the effect of, and possible changes to, our current laws on the emerging lab-grown meat market. To look at this problem, this Comment compares FDA and USDA regulations, analyzes the Hatch-Waxman Act, and …

Pre-Game Strategy For Long-Term Win: Using Trademark Registration And Right Of Publicity To Protect Esports Gamers, John Bat

Catholic University Journal of Law and Technology

The soaring popularity of esports across the globe has turned ultra-talented gamers into a blend of athlete and entertainer. The youthful esports ecosystem is exploding in growth, and the world is taking notice. But are the gamers who are eyeing professional play taking basic legal steps to develop and shield their brands, as well as bolster their collective negotiating leverage with teams, leagues, and miscellaneous entities? This note explores what features of an up-and-coming esports gamer might be worth protecting through a trademark and/or personality-rights schema, which in turn, could assist competitive gamers who are interested in developing their careers …

Defend Trade Secrets Act And The Seizure Provision: Useful Or Superfluous?, 19 Uic Rev. Intell. Prop. L. 218 (2020), Sachin Bhatmuley

UIC Review of Intellectual Property Law

Over three years have passed since the Defend Trade Secrets Act (DTSA) was passed by Congress. One of the remarkable and ground-breaking provisions of the act was the ex parte seizure provision. With its inherent expediency and the element of surprise, the ex parte seizure provision found instant appeal among the trade secret owner community. But the opponents saw a provision ripe for abuse and anti-competitive behaviour. In the three years since its enactment, the ex parte seizure provision has been used sparingly. Plaintiffs have found other provisions equally effective or at least “good enough.” Even when plaintiffs sought ex …

The Yeezy Boost 350 Copyright Registrations: Did Kanye West Turn Justice Breyer's Fear Into A Reality?, 19 Uic Rev. Intell. Prop. L. 244 (2020), Dorien Clark

UIC Review of Intellectual Property Law

In the world of fashion, few have been able to gain copyright protection for their most ambitious and intricate designs. The useful article prohibition has long haunted designers and has left them with less desirable forms of protection, such as design patent or trade dress protections. Sympathetic to the artistic nature of many useful article designs, courts crafted varying standards to allow copyright protection for artistic aspects separable from the useful article. The Supreme Court articulated a new separability standard in Star Athletica v. Varsity Brands, which introduced a new chapter of copyright protection for useful articles. Although the standard …

Ncaa Down For The Count? New State Legislation Threatens Collegiate Sports As We Know It, 19 Uic Rev. Intell. Prop. L. 346 (2020), Joe Nelson

UIC Review of Intellectual Property Law

Since the 1950s, the NCAA’s amateurism shield has served as a stalwart protector in combatting litigation from athletes and coaches within its purview. They have faced many lawsuits since that time, with the overwhelming majority failing. As this comment shows, complaints have been of a wide variety such as antitrust, employment, and state action litigation. The amateurism principle was their defense in each of those situations. But now, many states have recently begun passing legislation that would allow student athletes to obtain compensation, in more ways than one. These statutes are a shot through the heart of the amateurism principle, …

Music Sampling And The De Minimis Defense: A Copyright Law Standard, 19 Uic Rev. Intell. Prop. L. 310 (2020), Adam Baldwin

UIC Review of Intellectual Property Law

No abstract provided.

Patents 254 Miles Up: Jurisdictional Issues Onboard The International Space Station, 19 Uic Rev. Intell. Prop. L. 365 (2020), Bill Warners

UIC Review of Intellectual Property Law

Over the past few decades, the emergence of private companies pursuing space exploration proves that venturing into the final frontier is no longer exclusive to government-run operations. From satellites to rocket boosters, billions of dollars worth of private property flies into space every year. However, the expansion of these private companies creates unique jurisdictional challenges for patenting private inventions and processes in outer space. This comment examines what jurisdictional claims and remedies arise when a private third-party commits patent infringement in an outer space jurisdiction that did not issue the patent.

What’S In A Name? Curver Luxembourg And Its Implications For Design Patents, 20 Uic Rev. Intell. Prop. L. 54 (2020), Zachary Shufro

UIC Review of Intellectual Property Law

No abstract provided.

Nonobviousness Standard For Promoting Ongoing Drug Discovery: A Lesson From Sanofi-Aventis U.S., Llc V. Dr. Reddy’S Laboratories, Inc, 20 Uic Rev. Intell. Prop. L. 1 (2020), Ping-Hsun Chen

UIC Review of Intellectual Property Law

No abstract provided.

Living Heritage, Stolen Meaning: Protecting Intangible Native American Cultural Resources Through The Right Of Publicity, 20 Uic Rev. Intell. Prop. L. 31 (2020), Shannon Price

UIC Review of Intellectual Property Law

No abstract provided.

Friend Or Foe: Amazon And The Role It Plays In The Fight Against Copyright Infringement Of Books, 20 Uic Rev. Intell. Prop. L. 87 (2020), Emily Ruzevich

UIC Review of Intellectual Property Law

No abstract provided.

Danning Zhu, How To Improve China’S Approach To Parallel Imports Of Goods Bearing Trademarks, 19 Uic Rev. Intell. Prop. L. 125 (2020), Danning Zhu

UIC Review of Intellectual Property Law

Parallel import, also known as grey market goods, refers to the act of importing goods to a country and selling in the country without the permission of the domestic owner of IP vested in the imported goods. The importer can obtain profits through the price differences between parallel imported products and domestic products of the same variety. China and the United States have huge differences in parallel import policies, even though both countries have participated in major international IP treaties. The United States requires that parallel imported goods bearing a genuine trademark or trade name registered in the United States …

Harry Potter & The "Chinese" Philosopher’S Stone: Deconstructing Copyright Piracy Through Shanzhai, 19 Uic Rev. Intell. Prop. L. 101 (2020), Mark Edward Blankenship Jr.

UIC Review of Intellectual Property Law

The United States still faces a disconnect with China regarding intellectual property piracy. Particularly, with regards to shanzhai copyrightable works of art, the U.S. labels these fake works as knock-offs, rip-offs, and counterfeits. However, China views shanzhai as a unique form of copying that embraces the “Chinese spirit,” due to its constant modification and hybridization, superior quality, transformativeness, and democratic energies. By understanding the peculiarities of shanzhai, both physical and abstract, as well as China’s copyright law and tradition, this paper proposes ways on how China can improve their copyright laws to improve how shanzhai is perceived and to curb …

Is The Emperor Still Far Away? Centralization, Professionalization, And Uniformity In China's Intellectual Property Reforms, 19 Uic Rev. Intell. Prop. L. 145 (2020), William Weightman

UIC Review of Intellectual Property Law

As China’s rapid economic growth continues to slow, the Chinese Communist Party now seeks to promote innovation as the engine of future development. With this new economic agenda, reforms to China’s intellectual property rights (IPR) regime have emerged as a key policy domain as China attempts to build market-supporting institutions and improve law enforcement capabilities. By reviewing the legal frameworks supporting specific judicial reforms and through non-randomized, semistructured field interviews with lawyers, IP officials, and industry representatives, this article analyzes how China’s evolving legal institutions are increasing central control in the IP adjudication process, building judicial professionalism, and ensuring uniformity …

So Are Games Coffee Mugs Or What? Games And The Right Of Publicity Revisited, 19 Uic Rev. Intell. Prop. L. 178 (2020), William K. Ford

UIC Review of Intellectual Property Law

In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), the U.S. Supreme Court held that video games are equivalent to other forms of media for First Amendment purposes. This decision should have put video games in the same category as other forms of non-commercial, expressive speech for purposes of the right of publicity. This article reviews the post-Brown decisions to determine the current place of video games within the caselaw. The result of that review is that games are still in a transitional stage, no longer merchandise as a matter of doctrine, but not yet receiving the same treatment …

Protecting Genetic Identity With The Right Of Publicity: Applying California's Common Law Right Of Publicity To Direct-To-Consumer Genetic Testing, Steven A. Fisher

American University Law Review

The completion of the Human Genome Project has and will continue to spur extraordinary innovation in the realm of genetics. One such innovation was the rise of commercial, direct-to-consumer (DTC) genetic testing, which allows consumers to learn about their origin, family, and disease predisposition, all by paying a modest sum and providing a tube of saliva. But the hidden cost is more severe: forfeiture of control over one’s genetic identity. DTC genetic companies have exploited this vulnerability, entering into data-sharing agreements worth hundreds of millions of dollars.

This Comment argues that DTC genetic testing companies who sell and share consumers’ …

Electric Vehicles, Infrastructure Electrification And The Urban-Rural Divide, Nathan Reck

SMU Science and Technology Law Review

No abstract provided.

Quantum Supremacy, Network Security & The Legal Risk Management Framework: Resiliency For National Security Systems, Salah E. Ali

SMU Science and Technology Law Review

No abstract provided.

Machines Finding Injustice, Hannah S. Laquer, Ryan W. Copus

SMU Science and Technology Law Review

With rising caseloads, review systems are increasingly taxed, stymieing traditional methods of case screening. We propose an automated solution: predictive models of legal decisions can be used to identify and focus review resources on outlier decisions—those decisions that are most likely the product of biases, ideological extremism, unusual moods, and carelessness and thus most at odds with a court’s considered, collective judgment. By using algorithms to find and focus human attention on likely injustices, adjudication systems can largely sidestep the most serious objections to the use of algorithms in the law: that algorithms can embed racial biases, deprive parties of …

Notice And Choice Must Go: The Collective Control Alternative, Richard Warner

SMU Science and Technology Law Review

Over twenty years of criticism conclusively confirm that Notice and Choice results in, as the law professor Fred Cate puts it, “the worst of all worlds: privacy protection is not enhanced, individuals and businesses pay the cost of bureaucratic laws.” So why is it still the dominant legislative and regulatory approach to ensuring adequate informational privacy online? Recent implementations of Notice and Choice include the European Union’s General Data Protection Regulation, and California’s Consumer Protection Privacy Act. There is a well-known alternative (advanced by Helen Nissenbaum and others) that sees informational privacy as arising from social norms that require conformity …