Intellectual Property Law Commons^™

Panel Discussion: Remembering Justice Scalia In Ip Cases, Graeme Dinwoodie

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Neglected Diseases: How Intellectual Property Can Incentivize New Treatment, Vinita Banthia

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Fair Use’S Unfinished Business, Rebecca Tushnet

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Frand Market Failure: Ipxi’S Standards-Essential Patent License Exchange, Jorge L. Contreras

Chicago-Kent Journal of Intellectual Property

This case study pertains to Intellectual Property Exchange International, Inc. (IPXI), which was formed in 2008 to create a market-based trading exchange for aggregated patent license rights, particularly standards-essential patents (SEPs). IPXI based its model on existing commodities exchanges, proposing that non-exclusive patent licenses could be standardized, commoditized, and traded on an open market, thus eliminating costly and inefficient bilateral negotiations and providing a royalty rate likely to be viewed as “reasonable”. IPXI’s most ambitious offering involved a portfolio of 194 U.S., European and other patents deemed essential to IEEE’s 802.11n “Wi-Fi” standard. IPXI offered up to 50,000 tradable Unit …

P, Mariana Lopez-Galdos

Chicago-Kent Journal of Intellectual Property

The paper tracks recent developments in the United States and EU competition systems with regard to the different policy tools used to address matters arising from the intersection of IP and competition policies. The analysis compares the enforcement and advocacy efforts carried out by the different antitrust agencies in the United States and EU.

This Article first traces how different authorities with antitrust mandates in the United States have dealt with the issue of balancing the rights of standard essential patent holders with innovation driven public welfare. This article then looks at how the antitrust authorities are using their antitrust …

Copyright’S Other Functions, Margaret Chon

Chicago-Kent Journal of Intellectual Property

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as …

Suspect Assertions Of Copyright, Edward Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Challenges Of Following Good Advice About Copyright And The First Amendment, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Sherlock Holmes & The Case Of The Contested Copyright, Jessica L. Malekos Smith

Chicago-Kent Journal of Intellectual Property

For generations, Sir Arthur Conan Doyle’s novels and short stories on the adventures of Sherlock Holmes have captivated the minds of readers and fueled a lucrative intellectual property market. The historical trajectory of international copyright protections to this literary canon, however, is an equally intriguing, if not mysterious, page-turner. This Note explores the procedural history of Klinger v. Conan Doyle Estate, Ltd., and examines how the literary characters of Sherlock Holmes and Dr. John H. Watson can simultaneously exist in the public domain, while certain story elements still remain under copyright protection in the United States until 2022.

Putting The Pieces Together: A Proposal For A Contributory Infringement Provision In Patent Law, Xianzhi Quan

Chicago-Kent Journal of Intellectual Property

Among the top five countries who have filed the most patent applications under the Patent Cooperation Treaty (“PCT”) in 2015, China is the only country that has no provision regarding contributory patent infringement. As a result, in patent cases related to contributory infringement, different courts have adopted different criteria to determine whether contributory patent infringement is present. This has resulted in many problems in China, causing confusion and conflicts in understanding among patent holders and the public.

With the increase of patent infringement cases in China, legislation on the standard of contributory patent infringement is imminent. This Article puts forward …

Navigating The Legal Landscape Of A Subversive Art Form: Protecting Expression And Neglecting Embodiment, Dillon Henry Stern

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Right To Destroy Under Droit D’Auteur: A Theoretical Moral Right Or A Tool Of Art Speech?, Sofie G. Syed

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Limiting Downstream Effects Of Patent Licensing Activity In Software And Electronics: An Argument For Alienability Of Patent Licenses To Licensees' Business Successors, Anna A. Onley

Chicago-Kent Law Review

Frustrating the ability to transfer ownership is costly, and non-creative entities (NCEs) may contribute to rising costs of innovation by contractually requiring their licensees to seek NCE consent to subsequent license transfers. One possible way of gradually limiting the reach of NCEs in this area is to expand the doctrine of patent misuse—which supports the unenforceability defense to patent infringement—to construe restraints on alienation of patent licenses as patent misuse. This narrowly tailored approach, discussed in this Note, minimizes the risk of negative impact on the patent system because it avoids the question of patent invalidity and does not seek …

Keeping Tabs: When Will Ttab Decisions Have Preclusive Effect? Preclusive Effect Of T.T.A.B. Likelihood Of Confusion Decisions After B&B; V. Hargis Industries, Brendan J. Ketchum

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Keynote Address: Censorship In The Guise Of Authorship: Harmonizing Copyright And The First Amendment, M. Margaret Mckeown

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Recent Trends In The Use Of Surveys In Advertising Law Disputes; An Update On The Case Law, Kenneth Plevan

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Multiple Intellectual Property Damage Complications As In Apple V Samsung? Try Using Excel, W. Lesser

Chicago-Kent Journal of Intellectual Property

No abstract provided.

(Mis)Appropriation Art: Transformation And Attribution In The Fair Use Doctrine, John Carl Zwisler

Chicago-Kent Journal of Intellectual Property

Since the adoption of transformation by the Supreme Court, judicial decisions have continued to expand the fair use doctrine. Relying on transformation has led judges to subjectively critique and analyze artwork in order to make a legal decision. However, while a majority of circuits apply transformation, it is not followed by all of them. Transformation should no longer be a requirement in a fair use analysis concerning appropriation art, because it first requires subjective interpretation of an artist’s work. Transformation also gives an advantage to artists appropriating the work, claiming fair use of another’s copyrighted work. Instead, the emphasis should …

Copyrights And Trademarks In Cyberspace: A Legal And Economic Analysis, Georgios I. Zekos

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Defining The Press Clause: The End Of Hot News And The Attempt To Save Traditional Media, Adam Tragone

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Why Royalties For Standard Essential Patents Should Not Be Set By The Courts, Stanley M. Besen

Chicago-Kent Journal of Intellectual Property

Although Standard Setting Organizations (SSOs) generally require patent holders to agree to license their technologies on Reasonable and Non-Discriminatory (RAND), or Fair Reasonable and Non-Discriminatory (FRAND), terms as a condition of including their technologies in a standard, SSOs have generally declined to accept responsibility for clarifying the meaning of these commitments. Despite this, a consensus has emerged among most commentators as to how F/RAND royalties should be determined for Standard Essential Patents. According to the consensus view, a F/RAND royalty should be the cost of obtaining a license just before the patented invention is declared essential to compliance with an …

Rectifying Fair Use After Cariou V. Prince: Reviving The Forgotten Statutory Text And Requiring That Unauthorized Copying Be Justified, Rather Than Merely “Transformative”, Daniel J. Brooks

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Korea Database: Wipo-Administered Udrp Decisions, The First Fifteen Years (2000–2014), Ilhyung Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Have We Gone Too Far: Does The Seventh Amendment Compel Fact-Finding Before Reaching A Decision On Patent-Eligible Subject Matter?, Jesse D.H. Snyder

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Path Toward An Increased Role For The United States In Patent Infringement Litigation, Caroline M. Turner

Chicago-Kent Journal of Intellectual Property

A number of major statutory schemes implicate federal interests but do not provide for explicit authority for the United States to bring lawsuits for damages or to obtain injunctive relief. The patent statutes provide that the patentee may sue in the case of infringement, and court decisions have extended that right to certain licensees. Accordingly, the United States has participated in cases in which it is not a co-patentee or licensee only as an amicus. Yet the government arguably has an interest in intervening in or instituting, as a co-plaintiff, infringement cases involving certain patents. Recent scholarship has renewed attention …

Enabling Access To Clinical Trial Data: When Is Unfair Use Fair?, Daria Kim

Chicago-Kent Journal of Intellectual Property

This inquiry is prompted by the unprecedented policy of the European Medicines Agency that enables the disclosure of clinical trial reports submitted for drug marketing authorization, effective as of January 1, 2015. It addresses the question whether such practice is in compliance with the international standard of clinical data protection under Article 39.3 of the TRIPS Agreement. Most scholarly and policy debate regarding this provision analyzes whether it precludes the referential use of data to facilitate the approval of a generic drug. Rather than focusing on a particular use, this Article seeks to identify the principle underlying the protection obligation …

Biosociality, Reimagined: A Global Distributive Justice Framework For Ownership Of Human Genetic Material, David J. Jefferson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Effect Of Economic Crises On Patenting Activity Across Countries, Daniel Benoliel, Michael Gishboliner

Chicago-Kent Journal of Intellectual Property

This article offers a conceptual and empirical contribution regarding the effect of economic crises on patenting activity across countries. It does so in the midst of the predominant general view that economic crises flatly chill patenting activity for all countries alike.

Financial crisis literature commonly assumes that, during global financial crises, private enterprises consequently tend to retreat to the safety of their domestic markets. These enterprises presumably react this way because of the lesser familiarity of foreign markets, the currency risks involved in international investment, and the uncertainties regarding the issue of how states will treat foreign assets.

This article …

The Constitutionality Of Design Patents, Ralph D. Clifford, Richard J. Peltz-Steele

Chicago-Kent Journal of Intellectual Property

Design patents have been part of American law since 1842. In that time, only just over 600,000 design patents have been issued, with more than half of these being granted in the last twenty years. This quantity is dramatically fewer than the number of utility patents issued which is rapidly approaching 9,000,000 issued patents. Possibly because of the low usage of design patents over time, no case law and little literature address the constitutional issues raised by them. This article intends to overcome that shortcoming. Two constitutional aspects of design patents will be examined.

First, congressional authority to adopt the …

Open Source Business Models And Synthetic Biology, Tej Singh

Chicago-Kent Journal of Intellectual Property

The software industry has successfully utilized open source business models namely with software such as Android and Linux. Open source business models allow individuals to collaborate and share information without fear that the shared information will be commercially misused. Given the similarities between software source code and genetic sequences, innovators in the field of synthetic biology feel that open source business models can help further innovation for synthetic biology in a similar manner. However, when determining whether to join an open source project, practitioners must first identify if such a project will be beneficial to their goals. This Comment discuss …