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Intellectual Property Law Commons™

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Chicago-Kent College of Law

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Articles 151 - 180 of 431

Full-Text Articles in Intellectual Property Law

Administrative Oversight: Justice Gorsuch’S Patent Opinions, The Ptab, And Antagonism Toward The Administrative State, Daniel D. Kim, Jonathan Stroud Feb 2019

Administrative Oversight: Justice Gorsuch’S Patent Opinions, The Ptab, And Antagonism Toward The Administrative State, Daniel D. Kim, Jonathan Stroud

Chicago-Kent Journal of Intellectual Property

In his first term, Justice Neil Gorsuch has made a surprisingly forceful impact on, of all things, patent law—and even more unlikely, the United States Patent and Trademark Office’s adjudicatory arm, the Patent Trial and Appeal Board. Was there any way to predict, from his 10th Circuit opinions below, that he would author opinions in all three patent cases in his first term? Was this attention the result of deeply submerged but long-felt opinions on patent law, or rather a result of his sharp distrust of administrative overreach? We analyze 10th Circuit and Supreme Court opinions authored by Justice Gorsuch, …


Due Process In Aia Proceedings After Sas Institute Inc. V. Iancu, Mikaela Stone, Britton Davis Feb 2019

Due Process In Aia Proceedings After Sas Institute Inc. V. Iancu, Mikaela Stone, Britton Davis

Chicago-Kent Journal of Intellectual Property

No abstract provided.


The Collapse Of Covered Business Method Reviews, Eleanor M. Yost Feb 2019

The Collapse Of Covered Business Method Reviews, Eleanor M. Yost

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas Feb 2019

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent …


Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest Feb 2019

Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest

Chicago-Kent Law Review

The United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s Halo …


Is Dna Really A Natural Product? It's Time To Separate Fact From (Legal) Fiction: An Examination Of Dna Patentability As A Biological Algorithm In The Post-Myriad Era, Nicholas Ulen Feb 2019

Is Dna Really A Natural Product? It's Time To Separate Fact From (Legal) Fiction: An Examination Of Dna Patentability As A Biological Algorithm In The Post-Myriad Era, Nicholas Ulen

Chicago-Kent Law Review

In 2013, the United States Supreme Court delivered its landmark decision in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., holding isolated DNA unpatentable, thereby invalidating the claims of thousands of DNA patents in the process. The opinion, delivered by Justice Thomas, reasoned that the act of separating DNA from the body did not sufficiently transform the molecule beyond what naturally exists. Yet the Court found that line to be crossed when it held certain artificially synthesized complementary DNA molecules coding for the exact same gene patentable. Unlike the Federal Circuit, the Court focused its analysis not on the …


All Or Nothing: Why The Supreme Court Sas Mandate Does Not Eliminate The Shaw Safe Harbor, Matt Johnson, Michael Lavine, Daniel Kazhdan Ph.D, Lisa Furby, David Anderson Feb 2019

All Or Nothing: Why The Supreme Court Sas Mandate Does Not Eliminate The Shaw Safe Harbor, Matt Johnson, Michael Lavine, Daniel Kazhdan Ph.D, Lisa Furby, David Anderson

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Are There Really Two Sides Of The Claim Construction Coin? The Application Of The Broadest Reasonable Interpretation At The Ptab, Paula Miller, Marianne Terrot, Stacy Lewis, Tom Irving Apr 2018

Are There Really Two Sides Of The Claim Construction Coin? The Application Of The Broadest Reasonable Interpretation At The Ptab, Paula Miller, Marianne Terrot, Stacy Lewis, Tom Irving

Chicago-Kent Journal of Intellectual Property

The USPTO has applied the broadest reasonable interpretation (BRI) claim construction standard during prosecution, reexamination, and other office proceedings for decades. The Supreme Court affirmed in Cuozzo Speed Technologies Inc. that BRI is also the appropriate standard for unexpired claims in post-grant proceedings at the Patent Trial and Appeal Board (PTAB). Leading up to Cuozzo, many parties speculated that the PTAB’s application of BRI might create confusion and result in inconsistent outcomes at the district court level. Notably, nothing in the America Invents Act establishes a standard of deference between PTAB and district court decisions. But so far, there has …


Master Of The Petition: Exploring The Tension Between The Ptab And Petitioners In Controlling The Scope Of Aia Trials, Raja N. Saliba, Grant Shackelford Apr 2018

Master Of The Petition: Exploring The Tension Between The Ptab And Petitioners In Controlling The Scope Of Aia Trials, Raja N. Saliba, Grant Shackelford

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Savvy Shaw-Ping: A Strategic Approach To Aia Estoppel, Steven J. Schwarz, Tamatane J. Aga, Kristin M. Adams, Katherine C. Dearing Apr 2018

Savvy Shaw-Ping: A Strategic Approach To Aia Estoppel, Steven J. Schwarz, Tamatane J. Aga, Kristin M. Adams, Katherine C. Dearing

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Precedential Decisions At The Ptab: An Endangered Species?, Robert M. Yeh Ph.D Apr 2018

Precedential Decisions At The Ptab: An Endangered Species?, Robert M. Yeh Ph.D

Chicago-Kent Journal of Intellectual Property

This Article describes the USPTO’s practice of designating certain opinions as precedential, informative, or representative and compares it to the practice of issuing precedential opinions at other agencies that conduct quasi-judicial proceedings. The Article explores the impact of these agency practices on stare decisis. It concludes that the USPTO should simplify its designation process, increase the number of precedential opinions, and by doing so improve consistency and predictability.


Without Clear Rules, Ptab Practices May Run Afoul Of The Apa, Arpita Bhattacharyya, Rachel L. Emsley Apr 2018

Without Clear Rules, Ptab Practices May Run Afoul Of The Apa, Arpita Bhattacharyya, Rachel L. Emsley

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Ptab Precedential Decision: Putting The Hammer Down On Filing Serial Petitions?, Ashley N. Klein, Warren J. Thomas Apr 2018

Ptab Precedential Decision: Putting The Hammer Down On Filing Serial Petitions?, Ashley N. Klein, Warren J. Thomas

Chicago-Kent Journal of Intellectual Property

Petitioners for inter partes review proceedings under the America Invents Act routinely file serial petitions to challenge a single patent. Patent owners have criticized such “follow-on” petitions as abusive. The Patent Trial and Appeal Board’s recent precedential opinion in General Plastic Industrial Co. v. Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 (P.T.A.B. Sept. 6, 2017), lays out seven non-exhaustive factors to guide the Board’s consideration of such “follow-on” petitions. This Article summarizes the Board’s analysis of follow-on petitions prior to General Plastic, examines how General Plastic has affected petitioners’ success in having such petitions instituted, and suggests strategies for practitioners …


To Stay Or Not To Stay Pending Ipr? That Should Be A Simpler Question, Joel Sayres, Julie Wahlstrand Apr 2018

To Stay Or Not To Stay Pending Ipr? That Should Be A Simpler Question, Joel Sayres, Julie Wahlstrand

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Uncertainty About Real Parties In Interest And Privity In Aia Trials, Evan Day, Kevin Patariu, Bing Ai Apr 2018

Uncertainty About Real Parties In Interest And Privity In Aia Trials, Evan Day, Kevin Patariu, Bing Ai

Chicago-Kent Journal of Intellectual Property

No abstract provided.


I Fought The Shaw: A Game Theory Framework And Approach To The District Courts' Struggle With Ipr Estoppel, Andrew V. Moshirnia Mar 2018

I Fought The Shaw: A Game Theory Framework And Approach To The District Courts' Struggle With Ipr Estoppel, Andrew V. Moshirnia

Chicago-Kent Journal of Intellectual Property

No abstract provided.


The Post-Grant Life: Coordinating & Strategizing Challenges Of Issued Patents In Multiple Continents, Karen E. Sandrik Mar 2018

The Post-Grant Life: Coordinating & Strategizing Challenges Of Issued Patents In Multiple Continents, Karen E. Sandrik

Chicago-Kent Journal of Intellectual Property

With the enactment of the Leahy-Smith American Invents Act (AIA), U.S. patent law gained a new post-grant opposition system and the Patent Trial and Appeal Board (PTAB). While the U.S. post-grant opposition system has some similarities to the post-grant systems, such as that in the European Union, Japan, South Korea, Canada, and Australia, there are also notable differences. Navigating one’s own post-grant system can be challenging, but doing so in multiple patent offices around the world is daunting. Differences in these proceedings not only present the potential for parties to make costly errors, but also to engage in strategic behavior. …


Yes, The Ptab Is Unconstitutional, Gregory Dolin, Md Mar 2018

Yes, The Ptab Is Unconstitutional, Gregory Dolin, Md

Chicago-Kent Journal of Intellectual Property

No abstract provided.


The Problem With Ptab's Power Over Section 101, Kristen Osenga Mar 2018

The Problem With Ptab's Power Over Section 101, Kristen Osenga

Chicago-Kent Journal of Intellectual Property

No abstract provided.


#Squadgoals: A Response To Seth Waxman, Amelia Smith Rinehart Mar 2018

#Squadgoals: A Response To Seth Waxman, Amelia Smith Rinehart

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Fair Or Free Use Of Copyrighted Materials In Education And Research And The Limit Of Such Use, Muhammad Masum Billah, Saleh Albarashdi Mar 2018

Fair Or Free Use Of Copyrighted Materials In Education And Research And The Limit Of Such Use, Muhammad Masum Billah, Saleh Albarashdi

Chicago-Kent Journal of Intellectual Property

The concept of fair use, fair dealing, or free use of copyrighted works for education and research is incorporated in copyright laws around the world. This is to strike a balance between the private interests of copyright holders and the public interests of students and researchers to use the copyrighted materials in furthering their knowledge. While fair and free use of copyrighted materials for the purpose of study and research is favored and permitted under copyright laws almost everywhere in the world, the limit of such use is not clearly defined in these laws. This Article will attempt to determine …


Parallel Novels And The Reimagining Of Literary Notables By Follow-On Authors: Copyrights Issues When Characters Are First Created By Others, Scott D. Locke Mar 2018

Parallel Novels And The Reimagining Of Literary Notables By Follow-On Authors: Copyrights Issues When Characters Are First Created By Others, Scott D. Locke

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Remedies And Procedure: Patent Law's Continuing Frontiers, John M. Golden Mar 2018

Remedies And Procedure: Patent Law's Continuing Frontiers, John M. Golden

Chicago-Kent Journal of Intellectual Property

No abstract provided.


R. Prince's New Portraits - The Art Of Fair Use, Mathilde Halle Mar 2018

R. Prince's New Portraits - The Art Of Fair Use, Mathilde Halle

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Drd Response To Seth P. Waxman's Article, Donald R. Dunner Mar 2018

Drd Response To Seth P. Waxman's Article, Donald R. Dunner

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Charting Supreme Court Patent Law, Near And Far, Joseph Scott Miller Mar 2018

Charting Supreme Court Patent Law, Near And Far, Joseph Scott Miller

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Are Internet-Implemented Applications Of Block-Chain Technology Patent-Eligible In The United States?, Gurneet Singh Mar 2018

Are Internet-Implemented Applications Of Block-Chain Technology Patent-Eligible In The United States?, Gurneet Singh

Chicago-Kent Journal of Intellectual Property

No abstract provided.


A Court Divided, Shubha Ghosh Mar 2018

A Court Divided, Shubha Ghosh

Chicago-Kent Journal of Intellectual Property

No abstract provided.


Ip Neutrality And Benefit Sharing For Seasonal Flu: An Argument In Favor Of Who Pip Framework Expansion, Arielle Sloan Mar 2018

Ip Neutrality And Benefit Sharing For Seasonal Flu: An Argument In Favor Of Who Pip Framework Expansion, Arielle Sloan

Chicago-Kent Journal of Intellectual Property

Currently, countries that share samples of influenza viruses with a global WHO network called GISRS can participate in IP and benefitsharing agreements over their samples only if those samples are considered potential pandemic triggers. Some key players in public health want to change that by extending those protections to seasonal flu viruses. Others argue that doing so will be problematic, by, for example, creating too much red tape for vaccine research and development or by destroying the progress that has already been made in creating GISRS. In this battle between WHO stakeholders, expanding the scope of IP and benefits agreements …


Beyond Trademark: The Washington Redskins Case And The Search For Dignity, Victoria F. Phillips Mar 2018

Beyond Trademark: The Washington Redskins Case And The Search For Dignity, Victoria F. Phillips

Chicago-Kent Law Review

In her pioneering book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, Professor Bernadette Atuahene employs a detailed ethnographic study of South Africa’s land restitution program to develop the concept of a dignity taking. This article extends the application of Atuahene’s theory to the taking of intangible property arguing that the misappropriation of cultural identity and imagery for use as a federal trademark can also constitute a dignity taking in certain cases. Perhaps no effort has received more public attention than the longstanding battle over the Washington NFL football team’s name and its federally registered “Redskins” …