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Articles 241 - 270 of 385
Full-Text Articles in Intellectual Property Law
Trademark Fair Use: Braun® Versus The Bunny, Vanessa P. Rollins
Trademark Fair Use: Braun® Versus The Bunny, Vanessa P. Rollins
Marquette Intellectual Property Law Review
Nominative fair use is a contentious issue in the field of trademark law. Manufacturers of original products who oppose the use of their actual products in advertisements for complementary goods often resort to the Lanham Act to prevent such practices. Courts have found the use of another's product in the advertising of complementary goods falls outside the nominative fair use defense. This article examines the nominative fair use defense and whether nominative fair use should encompass such uses.
Toward A More Reliable Fact-Finder In Patent Litigation, Amy Tindell
Toward A More Reliable Fact-Finder In Patent Litigation, Amy Tindell
Marquette Intellectual Property Law Review
Juries have been perceived as a blessing and a curse. They are perceived differently in different areas of law. For example, practitioners in patent law view juries in a negative light as the fact finders. In accordance with this view, Federal Courts of Appeals have begun to narrow the role of juries in patent trials. This paper follows the development of the Seventh Amendment in the patent context and its current status. This paper then proposes a system similar to peer-review to replace the traditional jury in patent trials.
Not All Grace Periods Are Created Equal: Building A Grace Period From The Ground Up, Renee E. Metzler
Not All Grace Periods Are Created Equal: Building A Grace Period From The Ground Up, Renee E. Metzler
Marquette Intellectual Property Law Review
The grace period for patent application filing is the amount of time a patent applicant has to file the application after the invention has been disclosed to the public. The rules and amount of time allowed vary greatly among countries. This comment explores the theoretical justifications for a grace period, the structural elements of a grace period, and other approaches to a grace period used in countries outside of the United States. The author proposes an ideal grace period model that would create international harmonization.
Fixing Continuing Application Practice At The Uspto, Kevin Rizzuto
Fixing Continuing Application Practice At The Uspto, Kevin Rizzuto
Marquette Intellectual Property Law Review
Controversy surrounds continuing application practice at the United States Patent & Trademark Office. Legal scholars highlight problems with continuing application practice and ways that applicants abuse the system. Patent practitioners admit that continuing application abuses exist, yet believe that establishing limits on continuing application practice would lead to an increase in appeals to the Board of Patent Appeals and Interferences. The USPTO attributes much of its continually growing backlog to the volume of continuing applications and requests for continued examinations, and published Proposed Rules to limit continuing applications. Legal scholars and the USPTO propose solutions that are too restrictive on …
Three Cases: A Practitioner's Life In Copyright, Mary Jane Sanders
Three Cases: A Practitioner's Life In Copyright, Mary Jane Sanders
Marquette Intellectual Property Law Review
In this speech, the lecturer highlights three influential Supreme Court decisions on copyright law and explains how these cases have influenced her career. The lecturer explains that the highlighted cases had a lasting impact on the intellectual property world and are still applicable to today's copyright practitioners. Even though intellectual property law now involves more cutting edge technology, issues such as copyright infringement, copyright ownership, and the award of attorney fees will always be fundamental to any copyright litigation.
What Goes Around, Comes Around: How Indian Tribes Can Profit In The Aftermath Of Seminole Tribe And Florida Prepaid, Jeremiah A. Bryar
What Goes Around, Comes Around: How Indian Tribes Can Profit In The Aftermath Of Seminole Tribe And Florida Prepaid, Jeremiah A. Bryar
Marquette Intellectual Property Law Review
Of the approximate 1.5 million American Indians living in the United States only 403,714 were employed in 2001 and nearly one-third of them lived below the poverty line. This article explains that one possible solution to American Indian poverty is the creation of sovereign chartered research groups that would be shielded by tribal sovereign immunity. In patent law there are exceptions to a patent owner's ability to bring a successful suit against patent infringers. One of these exceptions is when a sovereign, such as an American Indian tribe, infringes on a patent owner's patent. Tribal sovereign immunity means that American …
International Legal Protection Of Trademarks In China, Robert H. Hu
International Legal Protection Of Trademarks In China, Robert H. Hu
Marquette Intellectual Property Law Review
In China, the concept of intellectual property is relatively new. Chinese officials began taking steps towards trademark regulations in the 1950s, but it was not until 1982 that the first Chinese Trademark Law was enacted. Today, because of the growing global economy, China has had the highest number of trademark requests in the world for the fifth year in a row. In response to domestic and international pressures, Chinese trademark law and courts have had to adapt to the ever-changing landscape. This article first examines the development of Chinese intellectual property law through the international trademark agreements where China is …
Nanobiotechnology, Synthetic Biology, And Rnai: Patent Portfolios For Maximal Near-Term Commercialization And Commons For Maximal Long-Term Medical Gain, Thomas M. Mackey
Nanobiotechnology, Synthetic Biology, And Rnai: Patent Portfolios For Maximal Near-Term Commercialization And Commons For Maximal Long-Term Medical Gain, Thomas M. Mackey
Marquette Intellectual Property Law Review
This article examines patent portfolio construction and management of three nascent technologies: nanobiotechnology, synthetic biology, and interference RNA. The author outlines how a practitioner can use patent portfolios to help his or her client to maximize long-term gain. Finally, the article advocates changes that would remove barriers to patentability and increase patent quality.
Navigating The Safe Harbor Rule: The Need For A Dmca Compass, Tiffany N. Beaty
Navigating The Safe Harbor Rule: The Need For A Dmca Compass, Tiffany N. Beaty
Marquette Intellectual Property Law Review
The internet is a medium for more than just email and web browsing. Today, many internet users utilize the internet to access and share music, movies, and other types of media. Copyright law has attempted to keep up with the dynamic nature of the internet; however, this Comment posits it has only been marginally successful. The author examines whether the Safe Harbor Rule of the Digital Millennium Copyright Act (DCMA) is sufficient in balancing the need to protect copyright owners against the need for Internet Service Providers to be protected from third-party user suits. In doing so, the author concludes …
Emerging Scholars Series: Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble
Emerging Scholars Series: Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble
Marquette Intellectual Property Law Review
Injunctions enforcing a patentee's right to exclude provide an incentive to invent; however, injunctions are only effective if they can be enforced. Enforcing an injunction becomes problematic when other jurisdictions are involved, yet plaintiffs request such injunctions despite the potential inherent difficulties of cross-border enforcement. The author empirically analyzes the number and types of cross-border injunctions issued in the United States against foreign entities by discussing methods of enforcing injunctions abroad and the difficulties inherent in those methods. Comparing cases of cross-border injunctions issued by European courts, the author reviews the controversial pan-European injunction that covers not only the territory …
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Marquette Intellectual Property Law Review
Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a national and international public good instead of a private good and proposes that the government should oversee and fund the clinical trials to …
The Experimental Use Exception And Undergraduate Engineering Projects, Henry L. Welch
The Experimental Use Exception And Undergraduate Engineering Projects, Henry L. Welch
Marquette Intellectual Property Law Review
The experimental use exception was originally conceived as a defense applicable when the infringing activities were philosophical. Over time the exception has evolved into a test of the profit motives of the infringer. Despite their status as non-profits, universities now find themselves under the same narrow interpretation of the experimental use exception as previously applied only to profit-seeking businesses. This article explains that the experimental use exception is still a viable defense to patent infringement for a student-sponsored capstone senior design project. In a student-sponsored capstone senior design project, the impetus and general direction of the project are provided almost …
Intellectual Property Rights And Global Warming, Estaelle Derclaye
Intellectual Property Rights And Global Warming, Estaelle Derclaye
Marquette Intellectual Property Law Review
Global warming is an issue that is everywhere in today's society. This article examines whether intellectual property rights could be the solution to the global warming problem. The article limits its discussion to patent and copyright law and explores solutions to global warming that are applicable in Europe. The author suggests that these recommendations could influence other countries to make their intellectual property rights greener, as intellectual property rights are based on international instruments and universal agreements that could apply in any country. The article examines how current copyright and patent laws already tackle global warming and explains how these …
Phillips V. Awh, Corp., A Doctrine Of Equivalents Case?, Natalie Sturicz
Phillips V. Awh, Corp., A Doctrine Of Equivalents Case?, Natalie Sturicz
Marquette Intellectual Property Law Review
For a number of years, U.S. courts have noted that the doctrine of equivalents has been unworkable. This article explains that as American courts move toward a more holistic approach to claim interpretation, the doctrine of equivalents will become increasingly unnecessary as a means of expanding patent scope. The author asserts that adopting a "person having ordinary skill in the art" approach to claim interpretation and eliminating the doctrine of equivalents in patent infringement cases would benefit patent law in several ways: (1) when courts interpret patent claims from the perspective of a person reasonably skilled in the art, patentees …
Geographical Indications: A Discussion On The Trips Regulation After The Ministerial Conference Of Hong Kong, Stefania Fusco
Geographical Indications: A Discussion On The Trips Regulation After The Ministerial Conference Of Hong Kong, Stefania Fusco
Marquette Intellectual Property Law Review
Despite the strides the TRIPs Agreement made to protect Geographical Indications (GIs), considerable debate persists on how to further TRIPs' goals in that area. First, while some countries ally themselves with the European Union on maintaining a multilateral register for GIs, others follow the United States' preference for a voluntary database. Controversy also surrounds whether to extend the more expansive protections on wines and spirits to other products. Finally, the European Union has launched a staunchly opposed campaign to recover the exclusive use of a number of GIs, including many that have become generic names for their associated products. This …
Kewanee Revisited: Returning To First Principles Of Intellectual Property Law To Determine The Issue Of Federal Preemption, Sharon K. Sandeen
Kewanee Revisited: Returning To First Principles Of Intellectual Property Law To Determine The Issue Of Federal Preemption, Sharon K. Sandeen
Marquette Intellectual Property Law Review
In the early 1970s it was thought that states could regulate in the areas of trade secrets without interfering with federal patent policies. However, this concept was called into question in the Sixth Circuit's ruling in Kewanee Oil Co. v. Bicron. In 1974 the Supreme Court ruled that Ohio's trade secret law was not preempted by federal patent law. This article revisits the issues raised in Kewanee in light of the Supreme Court's current preemption jurisprudence, changes in patent law, copyright law, and trade secret law since that time. First, the article reviews the history and context of the Kewanee …
I Have A Secret? Applying The Uniform Trade Secrets Act To Confidential Information That Does Not Rise To The Level Of Trade Secret Status, Julie Piper
Marquette Intellectual Property Law Review
A trade secret is valuable information, such as a formula, a device, or a client list, that is essential to the survival of a business. State law governs trade secrets; however, the Uniform Trade Secrets Act was established to be a unified guide to assist states in protecting such secrets. Even though the UTSA's definition is broad, the Act does not provide protection for certain confidential information that does not qualify as a trade secret. Such information is still crucial to the survival and the carrying on of a business. This article explores the importance of creating a system that …
Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler
Wagging The Dog? Reconsidering Antitrust-Based Regulation Of Ip-Licensing, Gosta Schindler
Marquette Intellectual Property Law Review
This Article criticizes the institutional setup in which the antitrust policies regarding IP exploitation are designed and enforced. The author compares how IP licensing is scrutinized by antitrust regimes in the European Union and the United States. The result of that comparison leads to the conclusion that any attempted resolution of the IP-Antitrust dilemma will remain inadequate as long as it is antitrust-based, that is, regulated by antitrust laws or guidelines designed by antitrust-agencies. The author argues that antitrust concerns can and should be accounted for through proper construction and application of the IP laws themselves. The article suggests a …
Meddimmune, Microsoft, And Ksr: The United States Supreme Court In 2007 Tips The Balance In Favor Of Innovation In Patent Cases, And Thrice Reverses The Federal Circuit, Sue Ann Mota
Marquette Intellectual Property Law Review
In 2007 the Supreme Court reversed three patent cases from the Court of Appeals for the Federal Circuit. The three cases were MedImmune, Inc. v. Genentech, Inc. (holding a patent licensee does not have to breach a license agreement before seeking declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed), Microsoft Corp. v. AT&T Corp. (holding Microsoft did not supply a component of an invention from the United States that had the possibility of infringing under the Patent Act), and KSR International Co. v. Teleflex Inc. (holding the requirement of non-obviousness under the Patent Act is analyzed …
Antitrust Liability For Refusal To License Intellectual Property: A Comparative Analysis And The International Setting, Rita Coco
Marquette Intellectual Property Law Review
Antitrust and IP law both share the goals of promoting innovation and benefiting consumers. A potential for conflict exists, however, when a dominant firm's refusal to license IP rights affects the dynamics of competition. Antitrust intervention in IP rights can reduce incentives to invest, whereas a failure to allow anticompetitive behavior can harm consumers and competitors while reducing the efficiency of the economic system. The author reviews the European and United States approaches to monopolization claims involving IP rights. The European approach is limited by the mismatch between national enforcement of IP rights and community enforcement of antitrust law. The …
What Do We Do With A Doctrine Like Merger? A Look At The Imminent Collision Of The Dmca And Idea/Expression Dichotomy, Matthew J. Faust
What Do We Do With A Doctrine Like Merger? A Look At The Imminent Collision Of The Dmca And Idea/Expression Dichotomy, Matthew J. Faust
Marquette Intellectual Property Law Review
With the introduction of the Digital Millennium Copyright Act (DMCA), courts are now faced with the unsettling issue that copyright holders can receive damages even though copyright infringement did not occur. This comment begins its analysis of this issue with a brief overview of basic copyright infringement fundamentals, the different approaches and numerous tests that circuit courts have applied, and the idea/expression dichotomy, including the merger doctrine and the scenes a faire doctrine. The author then explores the collision between the DMCA and the idea/expression dichotomy by showing how the DMCA has impacted copyright law and how it intersects with …
Speaking Words Of Wisdom: Let It Be: The Reexamination Of The Human Embryonic Stem Cell Patents, Julia Vom Wege Dovi
Speaking Words Of Wisdom: Let It Be: The Reexamination Of The Human Embryonic Stem Cell Patents, Julia Vom Wege Dovi
Marquette Intellectual Property Law Review
Embryonic stem cell research represents an area of scientific inquiry that bears great promise, and patent law ensures that stem cell technology is both protected and utilized to its fullest potential. This article analyzes why the USPTO should not invalidate or narrow three challenged stem cell patents owned by the Wisconsin Alumni Research Foundation (WARF) through the Public Patent Foundation. The author outlines the science behind stem cells, explains the applicable law, and articulates the policy considerations relevant to patent law and stem cells. Ultimately, the author argues that that the challenged patents should remain valid because they have not …
In Re Seagate: Did It Really Fix The Waiver Issue? A Short Review And Analysis Of Waiver Resulting From The Use Of A Counsel's Opinion Letter As A Defense To Willful Infringement, Dov Greenbaum
Marquette Intellectual Property Law Review
The Federal Circuit, through its decision in Seagate, sought to clarify and definitively establish various consequences of an assertion of willful infringement by a patentee. This comment discusses the history and potential outcomes of the Seagate decision; first, by outlining basic issues of privilege and immunity and examining the history of uncertainty regarding waiver leading up to the Seagate decision. The remainder of the comment examines the potential outcomes of the decision, and presents possible resolutions to further resolve the issue and more fully repair attorney-client privilege and immunity.
Copyright's Empire: Why The Law Matters, Alina Ng
Copyright's Empire: Why The Law Matters, Alina Ng
Marquette Intellectual Property Law Review
Previous intellectual property literature demands a balance between incentives to produce for the creator of a work and access to information, knowledge, and content by the users. However, law and economics jurisprudence does not provide compelling arguments to support the notion that the copyright monopoly is the most efficient way to maximize public welfare by promoting the works of authors. The social cost from expansion of private rights is nonexistent because market structures change as technologies develop, providing society with increased accessibility to creative works. Accordingly, copyright laws need to expand as technology develops in order to realize a fair …
Fixing Through Legislative Fixation: A Call For The Codification And Modernization Of The Staple Article Of Commerce Doctrine As It Applies To Copyright Law, Blake Evan Reese
Fixing Through Legislative Fixation: A Call For The Codification And Modernization Of The Staple Article Of Commerce Doctrine As It Applies To Copyright Law, Blake Evan Reese
Marquette Intellectual Property Law Review
Courts have misinterpreted and disagreed over how to apply relevant principles of patent law to copyright cases in an effort to strike a balance between protecting copyright holders' rights without restricting innovation. The author argues that courts have inflicted damage upon the balance of copyright's competing policies, leaving copyright owners and technology innovators facing great uncertainty. The author's Comment addresses the development of the Staple Defense and the logical reasoning supporting a new legislative proposal.
The Extended Protection Of "Strong" Trademarks, Nicola Bottero, Andrea Mangani, Marco Ricolfi
The Extended Protection Of "Strong" Trademarks, Nicola Bottero, Andrea Mangani, Marco Ricolfi
Marquette Intellectual Property Law Review
Economic investment in trademarks is not necessarily indicative of product quality, as trademark protection does not provide incentive for continuous product quality improvement. The authors begin their analysis by exploring the function of trademarks from the perspectives of traditional law and economics. Such an analysis points to a conflict between the legal and economic interpretation of the function of trademarks. Particularly, the authors suggest that the traditional economic perspective of trademarks fails to justify the legal existence of strong brands and their extensions. This argument is tested through the review of advertising, brand extension, and product quality literature. The authors …