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Intellectual Property Law Commons™

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Articles 241 - 270 of 302

Full-Text Articles in Intellectual Property Law

Piracy Deserves No Privacy, Frank Chao Dec 2003

Piracy Deserves No Privacy, Frank Chao

Duke Law & Technology Review

The Recording Industry Association of America ("RIAA"), the music industry's trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing …

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Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander Dec 2003

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.

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U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen Dec 2003

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?

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Lights, Camera, Lawsuit, A. J. Bedel Nov 2003

Lights, Camera, Lawsuit, A. J. Bedel

Duke Law & Technology Review

As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have …

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Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller Nov 2003

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.

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3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby Nov 2003

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.

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Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon Oct 2003

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.

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Unintended Consequences: State Merger Statutes And Nonassignable Licenses, Joshua G. Graubart Oct 2003

Unintended Consequences: State Merger Statutes And Nonassignable Licenses, Joshua G. Graubart

Duke Law & Technology Review

The confused state of most state corporate merger statutes allows many intellectual property licenses to find their way into unintended hands by way of corporate merger, in spite of non-assignment clauses. Clearly a detriment to licensors, corporate licensees too should be wary of depending upon the merger statute; a court ruling may not go their way. The states must clean up their collective act and bring some much needed certainty to a highly unpredictable intersection of corporate and intellectual property law.

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Strengthening The Distinction Between Copyright And Trademark: The Supreme Court Takes A Stand, Jessica Bohrer Sep 2003

Strengthening The Distinction Between Copyright And Trademark: The Supreme Court Takes A Stand, Jessica Bohrer

Duke Law & Technology Review

Until recently, the question of whether §43 of the Lanham Act prevented the unaccredited copying of an un-copyrighted work was an open one. However, in Dastar v. Twentieth Century Fox, the United States Supreme Court speaks directly on this issue, emphasizing the distinction between copyright and trademark protections and cautioning against "misuse or overextension" of trademark protections into areas traditionally covered by copyright or patent law. This iBrief assesses the importance of such line drawing and explores the implications of this decision.

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Are We Legislating Away Our Scientific Future? The Database Debate, Dov Greenbaum Sep 2003

Are We Legislating Away Our Scientific Future? The Database Debate, Dov Greenbaum

Duke Law & Technology Review

The ambiguity of the present copyright laws governing the protection of databases creates a situation where database owners, unsure of how IP laws safeguard their information, overprotect their data with oppressive licenses and technological mechanisms (condoned by the DMCA) that impede interoperation. Databases are fundamental to scientific research, yet the lack of interoperability between databases and limited access inhibits this research. The US Congress, spurred by the European Database Directive, and heavily lobbied by the commercial database industry, is presently considering ways to legislate database protections; most of the present suggestions for legislation will be detrimental to scientific progress. The …

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Students, Music And The Net: A Comment On Peer-To-Peer File Sharing, David L. Lange Sep 2003

Students, Music And The Net: A Comment On Peer-To-Peer File Sharing, David L. Lange

Duke Law & Technology Review

As most of the public now know, the recording industry has lately filed civil suits alleging copyright infringement against hundreds of individual defendants across the country, many (I think most) of them college students and campus hangers-on. Hundreds more such suits are said to be in the offing. The nature of the infringements? Peer-to-peer file sharing via the Internet: a kind of piracy, to use the term favored by the industry, or downloading, as it is generally thought of by the students themselves - but from either perspective, the practice of recording music from the Net while making it available …

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A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang Sep 2003

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.

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Eldred V. Ashcroft: How Artists And Creators Finally Got Their Due, Shalisha Francis May 2003

Eldred V. Ashcroft: How Artists And Creators Finally Got Their Due, Shalisha Francis

Duke Law & Technology Review

In regards to copyright the U.S. Constitution states: "Congress shall have the power . . . to promote the Progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The intellectual property clause was added to the Constitution because of the recognition of the importance of balancing both an author's interest in protecting their creative works with the public interest in maintaining a method by which those same works could enter the public domain. However, the ability to properly perform this balancing act has proven more …

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Sealing The Coffin On The Experimental Use Exception, Jennifer Miller May 2003

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.

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Software Patent Law: United States And Europe Compared, Michael Guntersdorfer Mar 2003

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.

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Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig Mar 2003

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. …

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Reality Bites: How The Biting Reality Of Piracy In China Is Working To Strengthen Its Copyright Laws, Graham J. Chynoweth Feb 2003

Reality Bites: How The Biting Reality Of Piracy In China Is Working To Strengthen Its Copyright Laws, Graham J. Chynoweth

Duke Law & Technology Review

This iBrief discusses how persistent international concern and emerging domestic concern over Chinese intellectual property theft have helped give sharper teeth to the Chinese copyright regime in the past two years and how these new laws may leave bite marks in the future.

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Intellectual Property Rights And The International Treaty On Plant Genetic Resources For Food And Agriculture, Laurence R. Helfer Jan 2003

Intellectual Property Rights And The International Treaty On Plant Genetic Resources For Food And Agriculture, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

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Engaging Facts And Policy: A Multi-Institutional Approach To Patent System Reform, Arti K. Rai Jan 2003

Engaging Facts And Policy: A Multi-Institutional Approach To Patent System Reform, Arti K. Rai

Faculty Scholarship

The Court of Appeals for the Federal Circuit, charged with adjudicating appeals in patent cases, has adopted an unusual approach that arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by the fact-finding and policy application deficiencies of the trial courts and the Patent and Trademark Office (PTO), it has had a negative impact on innovation policy and has resulted in a patent system that is sorely in need of reform. This Article argues that because of the interdependence of the various institutions within the patent system, reform of the system …

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Patentable Subject [Anti]Matter, Kristoffer Leftwich Dec 2002

Patentable Subject [Anti]Matter, Kristoffer Leftwich

Duke Law & Technology Review

The statements, "The laws of nature," "the principles of nature," "the fundamental truths," etc., are not patentable, have been oft repeated but seldom understandingly used. They have led to misunderstanding and much confusion, not limited to members of the bar. In fact, the words... are all words of broad and also elastic meaning and are frequently used carelessly and without any attempt at refined distinctions.

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Internet Service Provider Liability For Contributory Trademark Infringement After Gucci, Gregory C. Walsh Dec 2002

Internet Service Provider Liability For Contributory Trademark Infringement After Gucci, Gregory C. Walsh

Duke Law & Technology Review

[I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit.

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Festo: Blessing To Patent Holders Or Thorn In Their Sides?, Jennifer Miller Sep 2002

Festo: Blessing To Patent Holders Or Thorn In Their Sides?, Jennifer Miller

Duke Law & Technology Review

The Supreme Court makes another attempt to strike a balance between protecting an inventor's patent rights and ensuring adequate notice to the public of what constitutes patent infringement. This iBrief discusses the Supreme Court ruling in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. and its foreseeable effects on the practice of patent law.

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Software Patents: What One-Click Buy And Safe Air Travel Have In Common, Michael Guntersdorfer Aug 2002

Software Patents: What One-Click Buy And Safe Air Travel Have In Common, Michael Guntersdorfer

Duke Law & Technology Review

Have you ever sat in an airplane, typing on your laptop, when the darn thing crashes for the one-millionth time? Have you ever then thought about how the airplane you are sitting in is controlled by software, too--the technical term being "fly by wire"--and then started sweating uncontrollably? Software controls not only air traffic but plenty of other safety-critical technologies: the tightrope walk of controlling the chain reaction of radioactive elements in nuclear power plants; the navigation and activation of missiles;3 the moves and cutting-depth of a surgical laser when correcting eye-sights; the list goes on... With such reliance on …

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Protecting Intellectual Capital In The New Century: Are Universities Prepared?, James Ottavio Castagnera, Cory R. Fine, Anthony Belfiore Jun 2002

Protecting Intellectual Capital In The New Century: Are Universities Prepared?, James Ottavio Castagnera, Cory R. Fine, Anthony Belfiore

Duke Law & Technology Review

In recent years, intellectual property has become increasingly important to academic institutions throughout the United States. As universities rely more heavily on trademarks and patents for additional revenue, questions arise as to whether these institutions are sufficiently protected by their current intellectual property policies. This iBrief explores the policies promulgated by a variety of academic institutions and assesses whether these universities are adequately protected by their policies.

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The Extraterritorial Reach Of Trademarks On The Internet, Yelena Simonyuk Jun 2002

The Extraterritorial Reach Of Trademarks On The Internet, Yelena Simonyuk

Duke Law & Technology Review

The advent of the Internet means incredible opportunity for global interaction. Consumers in Asia can buy from a small business in Louisiana, and businesses can advertise to a much wider market for a fraction of the cost of traditional media. But these benefits come with a dilemma: what to do about trademark infringement on the Internet. In a virtual world with no borders, what (and where) is the law?

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The Enola Bean Patent Controversy: Biopiracy, Novelty And Fish-And-Chips, Gillian N. Rattray Jun 2002

The Enola Bean Patent Controversy: Biopiracy, Novelty And Fish-And-Chips, Gillian N. Rattray

Duke Law & Technology Review

Should traditional knowledge be patentable? As the number of patents filed by large corporations for native crops has increased, activists have become concerned about the economic effects of these patents on indigenous people. This iBrief discusses the attempts by one group of activists to test the validity of such patents in the United States and explores the issue of biopiracy in the Third World.

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An Interview With Caspar Bowden, Joseph Goodman Apr 2002

An Interview With Caspar Bowden, Joseph Goodman

Duke Law & Technology Review

Caspar Bowden ([email protected]) is the author of a recent DLTR article, Closed Circuit Television for Inside Your Head: Blanket Traffic Data Retention and the EmergencyAnti-Terrorism Legislation. He is the Director of the Foundation for Information Policy Research (http://www.fipr.org), an independent non-profit think-tank that undertakes research on the interaction between information technology and society, technical developments with significant social impact, and public policy alternatives. He was formerly a consultant specializing in Internet security and e-commerce, senior researcher of an option-arbitrage trading firm, a financial strategist with Goldman Sachs, and chief algorithm designer for a virtual reality software house. We interviewed Mr. …

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Court Gives Thumbs-Up For Use Of Thumbnail Pictures Online, Kelly Donohue Apr 2002

Court Gives Thumbs-Up For Use Of Thumbnail Pictures Online, Kelly Donohue

Duke Law & Technology Review

In the online world, where intellectual property rights can be violated with the simple click of a mouse, innovation sometimes finds itself engaged in a game of chicken with the law. Recently, online-photo-search engine Ditto.com played just such a game, taking their fight to the Ninth Circuit Court of Appeals. The Ninth Circuit's holding protects Ditto.com's use of copyrighted photos as transformative fair use. But the holding also addresses inline linking and framing, warning that they can violate copyright even in the face of a fair use.

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Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question, Harry Mihet Feb 2002

Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question, Harry Mihet

Duke Law & Technology Review

At first blush, the Copyright Clause and the First Amendment of the United States Constitution appear to serve conflicting interests and to exist in irrevocable tension. On one hand, the Copyright Clause grants authors "the exclusive Right to their respective Writings and Discoveries," thereby prohibiting others from utilizing certain forms of expression. On the other hand, the First Amendment prohibits Congress from "abridging the freedom of speech" and expression. ;Thus, by simultaneously prohibiting the use of another's expression and safeguarding expression, the two provisions appear to be on a constitutional collision course.

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Fraud And Enforceability: Potential Implications For Federal Circuit Litigation, Michael Kim Jan 2002

Fraud And Enforceability: Potential Implications For Federal Circuit Litigation, Michael Kim

Duke Law & Technology Review

Should fraudulent litigation tactics and testimony affect the validity of underlying patents? What results are possible if the enforceability of a patent turns on the conduct of the applying party not only before the Patent and Trademark Office, but also before circuit courts? The author of the following article considers these questions in light of the recent Aptix Corp. case.

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