Intellectual Property Law Commons^™

Free Fashion, Ashley M. Marshall

Marquette Intellectual Property Law Review

Our current vision of fashion is viewed as a shared art form that may be enjoyed by all social classes. Fashion encourages a melting pot of collaboration from people that are influenced by creativity. At its core, fashion is innovative and it inspires people to foster that same self-expressive conduit. Traditionally, fashion was a privilege and greatly restricted from certain classes. Indeed, Georg Simmel has proposed that in an open class society, the high class seeks to distinguish itself by adorning distinctive forms of dress, and in turn, the middle class adopts this form of dress to identify with the …

Beneficiaries Of Misconduct: A Direct Approach To It Theft, Andrew F. Popper

Marquette Intellectual Property Law Review

Almost a century ago, the United States Supreme Court declared that the prohibition against unfair competition serves to protect fundamental values and important rights. “[T]he right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired. It is this right that furnishes the basis of the jurisdiction . . . of unfair competition.” The idea is simple: it is unfair to competitors and inconsistent with basic notions of market competition to allow market actors to steal the work or property of another and …

The National Institutes Of Health, Patents, And The Public Interest: An Expanded Rationale Of Justice Breyer’S Dissent In Stanford V. Roche, Nida Shakir

Marquette Intellectual Property Law Review

In February 2010, the Alzheimer’s Institute of America (AIA) filed a patent infringement lawsuit against Jackson Laboratory, the largest repository of research mice in the world. AIA sued Jackson Laboratory for infringing on AIA’s patent covering a DNA mutation linked to Alzheimer’s disease. Jackson Lab allegedly violated that patent by distributing mice especially bred for Alzheimer’s research. READ MORE, download the article.

Copyright, Competition, And The First English-Language Translations Of Les Misérables (1862), Michael H. Hoffheimer

Marquette Intellectual Property Law Review

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International Intellectual Property Scholars Series: A Fundamental Critique Of The Law-And-Economics Analysis Of Intellectual Property Rights, Andreas Rahmatian

Marquette Intellectual Property Law Review

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International Intellectual Property Scholars Series: European Union Patents: A Mission Impossible? An Assessment Of The Historical And Current Approaches, Mauricio Troncoso

Marquette Intellectual Property Law Review

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Federal Circuit V. Ninth Circuit: A Split Over The Conflicting Approaches To Dmca Section 1201, Robert Arthur

Marquette Intellectual Property Law Review

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Copyrightable Works In The Undergraduate Student Context: An Examination Of The Issues, Lisamarie A. Collins

Marquette Intellectual Property Law Review

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Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen

Marquette Intellectual Property Law Review

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Internet Outlaws: Knowingly Placing Ads On Parked Domain Names Invokes Contributory Trademark Liability, Ariane C. Strombom

Marquette Intellectual Property Law Review

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Environmental Initiative And The Role Of The Uspto’S Green Technology Pilot Program, Sarah M. Wong

Marquette Intellectual Property Law Review

This Comment will address the environmental problems that confront the U.S. and the steps that the government has taken to solve them. Specifically, research funding and patent protection have provided the green industry an incentive to increase research and development of green technology. One of the more recent programs to help improve the patent protection of green technology, the Green Technology Pilot Program, accelerates the status of green technology through the United States Patent and Trademark Office (USPTO) patenting process. This Comment will suggest that the Program become a permanent feature within the USPTO and that it be expanded to …

A State-By-State Analysis Of Inevitable Disclosure: A Need For Uniformity And A Workable Standard, Ryan M. Wiesner

Marquette Intellectual Property Law Review

Even after the majority of the states adopted the Uniform Trade Secrets Act, there is a lack of uniformity in their applications of trade secret laws. This lack of uniformity is directly contrary to section 8 of the UTSA, which calls for the uniform application of trade secret laws by the states adopting the Act. Consequently, there is a need for uniformity in the states’ applications of trade secret law, more specifically, the inevitable disclosure doctrine.

This Comment will provide a basic introduction to trade secrets, the inevitable disclosure doctrine, including a discussion of the Seventh Circuit’s decision in Pepsico …

Liability For Trademark Infringement For Internet Service Providers, Katja Weckström

Marquette Intellectual Property Law Review

In the wake of the millennium and the rise of the internet, legislative action was taken to shelter internet service providers (ISPs) from various forms of legal action. In the turmoil of chartering new and unregulated territory, such a safe harbor was deemed necessary to protect startup businesses. Today, these internet actors (e.g. Google, Amazon, and eBay) have grown strong and powerful. Thus, intellectual property holders have started to challenge this privilege in court. Increasingly, owners of famous marks seek liability and damages for direct and indirect trademark infringement in courts around the globe. This Article will focus on liability …

Deviated, Unsound, And Self-Retreating: A Critical Assessment Of The Princo V. Itc En Banc Decision, Richard Li-Dar Wang

Marquette Intellectual Property Law Review

The licensing dispute between Philips and Taiwan CD-R/RW manufacturers has been a powerful generator of new developments in the field of patent and competition, which culminated with the United States Court of Appeals for the Federal Circuit's Princo en banc decision in 2010. By adding new elements to the patent-misuse test, this decision confined the applicable area of the patent-misuse doctrine to the restrictions that patent owners impose on licensees, thus substantially constraining its scope and changing its landscape. After careful review of the Federal Circuit's holding and reasoning, this article finds that this decision deviating from United States Supreme …

Unlocking The Genome: The Legal Case Against Genetic Diagnostic Patents, Tiana Leia Russell

Marquette Intellectual Property Law Review

New, innovative genetic diagnostic methods are rapidly changing the way diseases are diagnosed, prevented, and treated. While personalized medicine remains it its early stages, its potential to improve patients’ lives cannot be overstated. As advances in biotechnology offer patients the promise of improved healthcare choices, a heated debate has arisen over the propriety of patents on genetic diagnostics, and whether anyone has the right to own the information that is encoded in a person’s genes. This paper outlines recent litigation surrounding genetic and advanced diagnostic patents and examines whether they constitute patentable subject matter under 35 U.S.C. § 101. Part …

Emerging Scholars Series: Trade Dress Rights As Instruments Of Monopolistic Competition: Towards A Rejuvenation Of The Misappropriation Doctrine In Unfair Competition Law And A Property Theory Of Trademarks, Apostolos Chronopoulos

Marquette Intellectual Property Law Review

The protection of trade dress restricts the ability of competitors to compete by imitation. It may also interfere with the public’s ability to copy product features that have been disclosed in expired utility and design patents. These concerns about the anticompetitive potential of trade dress claims have prompted the Supreme Court to tighten the requirements for protecting product configurations under the Lanham Act. To be protectable, the design under consideration should have already acquired secondary meaning. Furthermore, the functionality doctrine may bar protection even though there are enough alternative product configurations at the disposal of competitors so as to market …

Websites And Intangible Asset Amortization Under 26 U.S.C. § 197: A Marriage That Bears Little Fruit, Christopher H. Bowen

Marquette Intellectual Property Law Review

Websites are not only an important part of our electronic lives, they are an important financial and business asset in their own right. With the growth of the internet as a commercial, informational, and recreational resource, companies utilize websites as an important part of their corporate financial portfolio and structure. The increased value of websites that comes from this growth has made websites a valuable asset that companies seek to use as they would other business assets. One important consideration is how the value of websites will be treated upon sale or exchange. In other words, is the website an …

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Marquette Intellectual Property Law Review

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Structural Uncertainty: Understanding The Federal Circuit's Lead Compound Analysis, Briana Barron

Marquette Intellectual Property Law Review

Recently, the Federal Circuit and lower courts have applied a new test to assess the question of obviousness for chemical compounds. While courts have always considered the presence of some lead compound to be relevant to the question of obviousness, beginning at the turn of the millennium, the Federal Circuit began assessing obviousness in a more formulaic fashion, applying what is commonly referred to as the lead compound analysis to determine if a litigant has established a prima facie case of obviousness. This Paper describes the development of the lead compound analysis, and its application. This Paper then discusses some …

International Intellectual Property Scholars Series: Reviewing The (Shrinking) Principle Of Trademark Exhaustion In The European Union (Ten Years Later), Irene Calboli

Marquette Intellectual Property Law Review

Ten years ago, I published an article in the Marquette Intellectual Property Law Review titled “Trademark Exhaustion in the European Union: Community-Wide or International? The Saga Continues.” In that article, I described the development of the principle of trademark exhaustion in the European Union (EU) and analyzed the interplay among trademark protection, trademark territoriality, and the treatment of the parallel importation of gray market products—unauthorized genuine goods imported from foreign countries—under Article 7 of the Trademark Directive (Article 7). In this Essay, I continue to explore, ten years after my 2002 article, the development of the principle of trademark exhaustion …

Contract + Tort = Property: The Trade Secret Illusion, Matthew Edward Cavanaugh

Marquette Intellectual Property Law Review

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

What Good Is Fame If You Can't Be Famous In Your Own Right?: Publicity Right Woes Of The Almost Famous, Porsche Farr

Marquette Intellectual Property Law Review

What exactly is the price of fame? For many Emerging Celebrities, the cost of fame is the forfeiture of significant portions of the rights of their personas. More specifically, reality television stars hoping to enter the entertainment industry and amateur athletes hoping to eventually enter into professional leagues face parallel experiences of being forced into industry standard contracts in which they must give up a significant amount of publicity rights. In giving up these rights, these Emerging Celebrities forfeit millions-of-dollars of potential income to their respective industries, which they could have generated for themselves by freely utilizing their publicity rights …

God In The Machine: Encryption Algorithms And The Abstract Exemption To Patentability, Jeremy R. Hager

Marquette Intellectual Property Law Review

This Comment explores the impact of the United States Supreme Court’s recent decision in Bilski v. Kappos upon the patentability of encryption schemes for digital content. While the majority of commentary concerning this anticlimactic decision has focused on the heated topic of software patents, little attention has been paid to the analogous field of cryptographic technology—and the patentability thereof—in light of Bilski’s “guidance.” Cryptographic technology, commonly utilized to protect digital content under the moniker Digital Rights Management (DRM) technology, has been utilized by all major content-producing industries to prevent copying by consumers of various content mediums, from software to …

International Intellectual Property Scholars Series: Using Intellectual Property Rights To Create Value In The Coffee Industry, Daphne Zografos Johnson

Marquette Intellectual Property Law Review

Coffee is the single most important tropical commodity traded worldwide. It is produced in over 50 developing countries, and it is estimated that some 20 million rural families, or 125 million people, depend on growing coffee throughout the world for their livelihoods. Over the past decade, coffee producers have been facing considerable difficulties because of low and unstable coffee prices. In 2002, coffee prices collapsed to 100-year lows in real terms, leading to a world coffee crisis. Meanwhile, the coffee economy in high income countries has been moving in the opposite direction, and the crisis is hardly visible from Starbucks-type …

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Marquette Intellectual Property Law Review

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International Intellectual Property Scholars Series: Intellectual Property And Asian Values, Peter K. Yu, Peter K. Yu

Marquette Intellectual Property Law Review

From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy.

Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and …

The Continuing Vitality Of The Presumption Of Irreparable Harm In Copyright Cases, Andrew F. Spillane

Marquette Intellectual Property Law Review

Property has long enjoyed civil enforcement through a potent remedy: the permanent injunction. For decades, federal courts across the country roundly granted permanent relief upon finding infringement and a threat of future infringement of one type of property: copyrights. Beyond these showings, a prevailing plaintiff in a copyright infringement case would not have to prove the cornerstone of equitable relief—irreparable harm—to obtain an injunction. But after the U.S. Supreme Court¹s decision in eBay v. MercExchange, some courts have abandoned this truncated equitable inquiry. In its place, the lower federal courts now apply eBay's four-factor test to determine whether a copyright …

Using Intellectual Property To Secure Financing After The Worst Financial Crisis Since The Great Depression, Brian W. Jacobs

Marquette Intellectual Property Law Review

Ever since Thomas Edison first used his patent on the incandescent electric light bulb as collateral to secure financing to start his company, the General Electric Company, intellectual property has been able to be used as collateral. Although not immediately thought of when securing financing, using intellectual property as collateral has occurred ever since the late 1800’s with Thomas Edison. In recent years, using intellectual property as collateral to secure financing has become quite popular. However, as with most financing in general, the use of intellectual property as collateral has slowed due to the first recession in the twenty-first century. …

Balancing Acts: Using A Mixed Test To Ensure Better Results In Rule Of Reason Patent Misuse Analysis Within Section 337, Syvil Shelbourne

Marquette Intellectual Property Law Review

This Comment addresses the tensions faced by the Federal Circuit in reviewing the ITC’s patent misuse decisions that address § 337 claims. First, this Comment provides relevant background information by explaining § 337 itself, the administrative power and function of the ITC under § 337, and the Federal Circuit’s jurisdiction and deferential stance to the ITC regarding § 337 appeals. Subsequently, this Comment examines both per se and rule of reason patent misuse defenses, within the context of ITC appeals to the Federal Circuit of § 337 claims, by laying out their doctrinal frameworks as set out by the Federal …

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Marquette Intellectual Property Law Review

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