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Articles 541 - 570 of 829
Full-Text Articles in Intellectual Property Law
Copyright & Privacy - Through The Political Lens, 4 J. Marshall Rev. Intell. Prop. L. 306 (2005), William W. Fisher Iii, Hugh C. Hansen, Christopher Jay Hoofnagle, Howard P. Knopf, Declan Mccullagh, Ralph Oman, Matthew J. Oppenheim
Copyright & Privacy - Through The Political Lens, 4 J. Marshall Rev. Intell. Prop. L. 306 (2005), William W. Fisher Iii, Hugh C. Hansen, Christopher Jay Hoofnagle, Howard P. Knopf, Declan Mccullagh, Ralph Oman, Matthew J. Oppenheim
UIC Review of Intellectual Property Law
Veteran beltway players discuss the politics of P2P technology and Privacy. How far can or should Congress go? Can the United States export its values or its laws in this area? Are content owners in a losing Luddite struggle? What is the role of litigators, lobbyists and legislators in this war?
Copyright & Privacy - Through The Privacy Lens, 4 J. Marshall Rev. Intell. Prop. L. 273 (2005), Julie E. Cohen, David E. Sorkin, Peter P. Swire
Copyright & Privacy - Through The Privacy Lens, 4 J. Marshall Rev. Intell. Prop. L. 273 (2005), Julie E. Cohen, David E. Sorkin, Peter P. Swire
UIC Review of Intellectual Property Law
What legal tools do privacy advocates have available to defend an individual’s right to privacy? How far does this right go? How should these rights be defended—or if necessary—curtailed? What is the role of Government, of the practicing bar and of academics?
Copyright & Privacy - Through The Wide-Angle Lens, 4 J. Marshall Rev. Intell. Prop. L. 285 (2005), William W. Fisher Iii, Howard P. Knopf, Fred Von Lohmann, William B.T. Mock, Marybeth Peters, R. Anthony Reese
Copyright & Privacy - Through The Wide-Angle Lens, 4 J. Marshall Rev. Intell. Prop. L. 285 (2005), William W. Fisher Iii, Howard P. Knopf, Fred Von Lohmann, William B.T. Mock, Marybeth Peters, R. Anthony Reese
UIC Review of Intellectual Property Law
Some have proposed “alternative compensation schemes” as a means of compensating copyright owners and creators for P2P activity while avoiding litigation. Some have proposed a streamlined dispute resolution system that would allow for enforcement in a manner analogous to the UDRP model. Others question whether private copying should necessarily be viewed as illegal and whether any alternative compensation scheme is viable. With all of these proposals, the question remains as to whether “alternative compensation” is really alternative.
Transaction Costs And Antitrust Concerns In The Licensing Of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005), Richard A. Posner
Transaction Costs And Antitrust Concerns In The Licensing Of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005), Richard A. Posner
UIC Review of Intellectual Property Law
High transaction costs incurred in the licensing of intellectual property create a pressure on legal principles ranging from the fair use doctrine of copyright law to the tying doctrine in antitrust law. It appears, with some exceptions, that antitrust law is imposing excessive restrictions on the licensing of intellectual property. The effect of these restrictions, combined with the high transaction costs inherent in the licensing of intellectual property, is to prevent the maximally efficient allocation of IP resources.
Recent Developments In Trademark Law: Confusion, Free Speech And The Question Of Use, 4 J. Marshall Rev. Intell. Prop. L. 387 (2005), Chad J. Doellinger
Recent Developments In Trademark Law: Confusion, Free Speech And The Question Of Use, 4 J. Marshall Rev. Intell. Prop. L. 387 (2005), Chad J. Doellinger
UIC Review of Intellectual Property Law
The Supreme Court’s continued trend of refining trademark rights combined with a new concern for free speech and expression brings current and unresolved trademark issues to light. The large amount of activity in the development of trademark law in 2004 has brought additional uncertainty to trademark law. This article discusses recent Supreme Court trademark jurisprudence refining trademark rights, the development of recent trademark dilution cases, the role of use in commerce as applied to internet search engines and keyword issues, and the emphasis on free speech and expression.
Intellectual Property Implications In A Virtual Reality Environment, 4 J. Marshall Rev. Intell. Prop. L. 483 (2005), Timir Chheda
Intellectual Property Implications In A Virtual Reality Environment, 4 J. Marshall Rev. Intell. Prop. L. 483 (2005), Timir Chheda
UIC Review of Intellectual Property Law
What will become of intellectual property interests in a world where virtual reality is a fact of life? To ponder this question we must step back from the sophisticated judicially created tests built around a framework of policy suited for modern reality and first consider whether such policy is viable given a virtual reality environment. Only then may we consider if the tests appropriately further such policy, and if not, modify the tests accordingly. This comment considers the policy and tests implicated when copyright, trademark, and patent law pass through the looking-glass and enter the realm of virtual reality.
Placing The Burden Back Where It Belongs: A Proposal To Eliminate The Affirmative Duty From Willful Infringement Analyses, 4 J. Marshall Rev. Intell. Prop. L. 509 (2005), Kevin J. Kelly
UIC Review of Intellectual Property Law
In order to further the objective of the patent system and maximize the public’s incentive to innovate, it is imperative that the patent laws maintain a balance between the interests of patent owners in excluding others from their patents and the interests of society in the continual progress of technology. The current law in willful infringement analysis upsets this balance with the affirmative duty of due care, which shifts the burden of proof in patent infringement suits from the plaintiff to the alleged infringer. The affirmative duty places a heavy burden on the public and is inconsistent with various common …
University Of Rochester V. G.D. Searle & Co.: Writing On The Wall, 4 J. Marshall Rev. Intell. Prop. L. 406 (2005), N. Scott Pierce
University Of Rochester V. G.D. Searle & Co.: Writing On The Wall, 4 J. Marshall Rev. Intell. Prop. L. 406 (2005), N. Scott Pierce
UIC Review of Intellectual Property Law
In patent law, the first paragraph of 35 U.S.C. § 112 is currently interpreted to include a written description requirement that is distinct from the requirement of enabling a person skilled in the art to make and use an invention. However, analyses of patent specifications under the “written description requirement” have relied on determinations of whether one skilled in the art would comprehend the scope of the claimed invention in view of the description provided, in effect continuing use of enablement as the statutory threshold for description purposes. The Court of Appeals for the Federal Circuit in University of Rochester …
Congress Wants To Give The Riaa Control Of Your Ipod: How The Induce Act Chills Innovation And Abrogates Sony, 4 J. Marshall Rev. Intell. Prop. L. 534 (2005), Michael Raucci
UIC Review of Intellectual Property Law
The addition of “active inducement” to the Copyright Act would compliment the doctrine of contributory liability by punishing those who actively encourage copyright infringement. Actively inducing infringement can include advertising an infringing use or other affirmative acts. Therefore, active inducement provides a technology-neutral standard that would not look to punish bad technology but rather bad actions by the technology distributor. In contrast, the reasonable person standard of the Inducing Infringement of Copyright Act of 2004 (“Induce Act”) permits an inappropriate extension of the exclusive rights given to copyright holders by lowering the threshold for litigation. Consequently, the Induce Act improperly …
"As The Federal Circuit Turns": The Supreme Court's Consideration Of Merck V. Integra And The Safe Harbor Provision, 4 J. Marshall Rev. Intell. Prop. L. 368 (2005), Blair M. Jacobs, Christina A. Ondrick
"As The Federal Circuit Turns": The Supreme Court's Consideration Of Merck V. Integra And The Safe Harbor Provision, 4 J. Marshall Rev. Intell. Prop. L. 368 (2005), Blair M. Jacobs, Christina A. Ondrick
UIC Review of Intellectual Property Law
The Hatch-Waxman Act was enacted to balance the competing interests in the pharmaceutical marketplace between brand name and generic drug manufacturers. In the twenty years since its inception, the safe harbor provision contained in § 271(e)(1), has been interpreted to provide broad protection to those involved in research activities. However, in 2003, the Federal Circuit narrowly interpreted the safe harbor provision in a move that could potentially frustrate future research and improvements on patented technologies. Merck v. Integra is currently before the United States Supreme Court, who has the challenge of unraveling the competing interests involved. In order to encourage …
Abuse Of Public Use? Exploring The Smithkline V. Apotex Decision And The Future Of Public Use, 4 J. Marshall Rev. Intell. Prop. L. 559 (2005), Artem N. Sokolov
Abuse Of Public Use? Exploring The Smithkline V. Apotex Decision And The Future Of Public Use, 4 J. Marshall Rev. Intell. Prop. L. 559 (2005), Artem N. Sokolov
UIC Review of Intellectual Property Law
In SmithKline Beecham Corp. v. Apotx Corp., the court incorrectly applied the statutory public use bar and held the clinical trials did not constitute an experimental use. This ruling set the bar too high. Applying a narrow construction of the law, the CAFC invalidated a claim in a clear case of experimental use. The decision not only misapplied the precedent defining an “inherent” feature of the invention, but also essentially eliminated the need for applying the policies that underlie and define the public use bar under 35 U.S.C. § 102(b).
Is The Federal Circuit Ready To Accept Plenary Authority For Patent Appeals?, 4 J. Marshall Rev. Intell. Prop. L. 583 (2005), Meredith Martin Addy
Is The Federal Circuit Ready To Accept Plenary Authority For Patent Appeals?, 4 J. Marshall Rev. Intell. Prop. L. 583 (2005), Meredith Martin Addy
UIC Review of Intellectual Property Law
Congress formed the U.S. Court of Appeals for the Federal Circuit in 1982 in part to improve uniformity in the interpretation of patent law and to eliminate forum shopping. However, in 2002, the Federal Circuit’s ability to achieve that goal was reduced when the U.S. Supreme Court, in Holmes Group v. Vornado, held that the Federal Circuit would not have jurisdiction in cases where a federal patent law issue arises only in a responsive pleading. Many commentators have argued that the Holmes decision runs afoul of the congressional mandate in forming the Federal Circuit. With the hope of addressing this …
The Third Door Is Off The Hinges: A Prospective Study On The Effects Of The Create Act Against Federal Patent Policies, 4 J. Marshall Rev. Intell. Prop. L. 597 (2005), Shane M. Popp
UIC Review of Intellectual Property Law
The CREATE Act has amended § 103 of the Patent Act to expand the definition of common ownership such that a claimed invention is deemed to be commonly owned with other subject matter when the two arise from the same “joint research agreement.” With the CREATE Act, Congress intended to promote research among inventive entities, but instead, Congress has relaxed the conditions for patentability to the point where a contract can circumvent an obviousness inquiry.
Pondering A “Baffling” Situation: The “Reconstruction” Of Claim Construction, 4 J. Marshall Rev. Intell. Prop. L. 623 (2005), Karen C. Mitch
Pondering A “Baffling” Situation: The “Reconstruction” Of Claim Construction, 4 J. Marshall Rev. Intell. Prop. L. 623 (2005), Karen C. Mitch
UIC Review of Intellectual Property Law
Through an iterative use of the ordinary dictionary, claim construction would be more simple, cost effective and efficient in serving the public notice function of the claim. Since the decision in Markman, two divergent methods of claim construction have emerged; one referring to dictionary definitions first, the other referring to parts of the patent such as the specification first. Due to the confusion and differing outcomes the two methods bring about, there came a call by the United States Court of Appeals for the Federal Circuit for clarification. The recent en banc decision in Phillips reverted claim interpretation back to …
Is The Cure Worse Than The Disease? An Overview Of The Patent Reform Act Of 2005, 5 J. Marshall Rev. Intell. Prop. L. 55 (2005), James G. Mcewen
Is The Cure Worse Than The Disease? An Overview Of The Patent Reform Act Of 2005, 5 J. Marshall Rev. Intell. Prop. L. 55 (2005), James G. Mcewen
UIC Review of Intellectual Property Law
As a result of pressures from various groups and issues surrounding the current patent system, representative Lamar Smith introduced a bill which overhauls multiple aspects of patent practice. The patent reform act is designed to please or compromise between various industry groups while at the same time invigorating the patent system. Specifically, the Patent Reform Act proposes changes to the procedures for filing application, how the applications are filed and even how patents are enforced. In addition to the major publicized changes the Patent Reform Act proposes other alterations that, while receiving less notice, have just as much practical effect. …
Patent Tying Agreements: Presumptively Illegal?, 5 J. Marshall Rev. Intell. Prop. L. 94 (2005), Alison K. Hayden
Patent Tying Agreements: Presumptively Illegal?, 5 J. Marshall Rev. Intell. Prop. L. 94 (2005), Alison K. Hayden
UIC Review of Intellectual Property Law
On January 25, 2005, the CAFC decided the case of Independent Ink, Inc. v. Illinois Tool Works, Inc., holding that market power will be presumed in a tying agreement whenever a tying product is patented. This rule puts patent holders at a disadvantage, and will increase the amount of antitrust lawsuits brought against patent holders and holders of other exclusive intellectual property rights. Indeed, this rule conflicts with the intended effect of antitrust law. This comment proposes that tying agreements involving a patented product be evaluated the same way as all other tying agreements, and that the presumption of market …
Claim Preambles And The Unassailable Patent Claim, 5 J. Marshall Rev. Intell. Prop. L. 121 (2005), Kyle D. Petaja
Claim Preambles And The Unassailable Patent Claim, 5 J. Marshall Rev. Intell. Prop. L. 121 (2005), Kyle D. Petaja
UIC Review of Intellectual Property Law
In order to diminish the extensive confusion surrounding claim preambles, one must not consider what a preamble should do; rather, it is helpful to consider what a preamble should not do. Traditionally, a preamble is defined as an introduction to a statute or deed stating the document’s basis, purpose, aim, justification, and objective. However, in patents, a claim preamble does not serve this purpose. While a preamble undeniably functions as an introduction to the rest of the claim, that claim is limited in scope and therefore, so too, is the preamble. The basis, purpose, aim, justification, and objective of the …
To Be Presumed Or Not To Be Presumed . . . That Is The Enablement Question, 5 J. Marshall Rev. Intell. Prop. L. 140 (2005), Kristina A. Walker
To Be Presumed Or Not To Be Presumed . . . That Is The Enablement Question, 5 J. Marshall Rev. Intell. Prop. L. 140 (2005), Kristina A. Walker
UIC Review of Intellectual Property Law
In 2003, the Federal Circuit in Amgen Inc. v. Hoechst Marion Roussel, Inc. placed the burden of proving a prior art patent’s § 112 nonenablement on the patentee instead of the accused infringer. The patentee even bears this burden when the unclaimed subject matter is asserted to anticipate the patent at issue. This comment focuses on three questions that were created by the decision in Amgen. First, is material in a printed publication equivalent to unclaimed material in a patent? Second, is the holding in Amgn based on a false premise because it may accord a presumption of § 112 …
Collateral Damage: The Effect Of The Database Debate On Other Acts Of Congress, 5 J. Marshall Rev. Intell. Prop. L. 78 (2005), Christopher A. Mohr
Collateral Damage: The Effect Of The Database Debate On Other Acts Of Congress, 5 J. Marshall Rev. Intell. Prop. L. 78 (2005), Christopher A. Mohr
UIC Review of Intellectual Property Law
Under the reasoning in Unied States v. Martingon, declaring the federal bootlegging statute unconstitutional, databases, as “non-writings,” could not be protected under Congress’s copyright power or commerce power. In other words, Congress’s power under Article I, Section 8, Clause 8 serves to limit its ability to act under Article I, Section 8, Clause 3. Marignon’s rationale raises questions about a variety of prospective and existing legislation that protects “non-writings” for an unlimited time, such as the trademark dilution statute. This article examines the merits of this contention, arguing that the manner in which the Supreme Court has handled overlapping Article …
Is The Acpa A Safe Haven For Trademark Infringers? - Rethinking The Unilateral Application Of The Lanham Act, 22 J. Marshall J. Computer & Info. L. 655 (2004), Jinku Hwang
UIC John Marshall Journal of Information Technology & Privacy Law
The Anticybersquatting Consumer Protection Act (ACPA) was enacted in 1999 as a response to international disputes over Internet domain names because according to the Congress’ point of view, courts could not successfully protected American businesses in cases where nothing more that the registration of a trademark or its variation in a domain name had occurred. This article analyzes recent court decisions regarding domain name disputes after the enactment of ACPA focusing on reverse domain name hijacking in international, trademark related and gTLD disputes. The author argues that the in rem jurisdiction provided by the ACPA and the consequent extraterritorial effect …
"Distinctive" And "Famous" - Separate Requirements Under The Federal Trademark Dilution Act?, 3 J. Marshall Rev. Intell. Prop. L. 174 (2004), M. Scott Donahey
"Distinctive" And "Famous" - Separate Requirements Under The Federal Trademark Dilution Act?, 3 J. Marshall Rev. Intell. Prop. L. 174 (2004), M. Scott Donahey
UIC Review of Intellectual Property Law
The Federal Trademark Dilution Act was promulgated to provide national protection of famous marks from uses that cause dilution of the distinctive quality of the mark. Courts consider several factors in determining whether a mark is “distinctive and famous.” However, a difference of opinion has arisen as to whether there is a difference between a “distinctive” mark and a “famous” mark. An analysis of the statutory language, pertinent historical sources, and the case law interpreting the statute leads one to conclude that the view articulated by the Second Circuit is more consistent with the language of the statute, the intent …
Commentary: Willful Patent Infringement And The Federal Circuit's Pending En Banc Decision In Knorr-Bremse V. Dana Corp., 3 J. Marshall Rev. Intell. Prop. L. 218 (2004), Janice M. Mueller
Commentary: Willful Patent Infringement And The Federal Circuit's Pending En Banc Decision In Knorr-Bremse V. Dana Corp., 3 J. Marshall Rev. Intell. Prop. L. 218 (2004), Janice M. Mueller
UIC Review of Intellectual Property Law
The Federal Circuit’s recent sua sponte grant of rehearing en banc in Knorr-Bremse v. Dana Corporation has catalyzed a vocal debate concerning the nature and consequences of willful patent infringement. Subject to virtually unanimous condemnation is the Federal Circuit’s “adverse inference” rule, which forces a party accused of willful infringement to choose between two unpalatable options: (i) disclosing privileged advice of counsel to mount a willfulness defense, or (ii) not disclosing such information and being subjected to an adverse inference that an exculpatory opinion was not or could not be obtained. This commentary concurs that the adverse inference rule should …
When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas
When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas
UIC Review of Intellectual Property Law
Reexamination was created to reconfirm the presumed validity of a patent without requiring the patentee to endure the expense of litigation. The Patent Act allows anyone to request reexamination of a patent based on newly discovered prior art. Upon finding that the request raises a substantial new question of patentability, the Director of the United States Patent and Trademark Office may order reexamination. Even if a request is not made, the Director may sua sponte order a reexamination. Such reexaminations are only initiated when questions of public policy arise and there is no interest by any other pson. However, in …
Developments In Patent Law 2003, 3 J. Marshall Rev. Intell. Prop. L. 229 (2004), Bradley C. Wright
Developments In Patent Law 2003, 3 J. Marshall Rev. Intell. Prop. L. 229 (2004), Bradley C. Wright
UIC Review of Intellectual Property Law
The year 2003 provided a great deal of legislative, administrative and judicial activity in the development of patent law. Legislation has been directed to amending the Hatch-Waxman Act and abrogation of State immunity from patent infringement. The U.S. Patent and Trademark Office has adopted changes pursuant to recent amendments to the Patent Cooperation Treaty and implemented an electronic filing system for patent applications. The Federal Trade Commission has taken an interest in patents, particularly standard setting technologies. In light of the Supreme Court’s decision in Festo, the Federal Circuit has provided additional guidance for prosecution history estoppel and the doctrine …
The Effectiveness Of International Enforcement Of Intellectual Property Rights, 37 J. Marshall L. Rev. 985 (2004), Allison Cychosz
The Effectiveness Of International Enforcement Of Intellectual Property Rights, 37 J. Marshall L. Rev. 985 (2004), Allison Cychosz
UIC Law Review
No abstract provided.
"Don't Let The Sun Go Down On Me:" An In-Depth Look At Opportunistic Business Method Patent Licensing And A Proposed Solution To Allow Small-Defendant Business Method Users To Sing A Happier Tune, 37 J. Marshall L. Rev. 1359 (2004), Andrea Lynn Evensen
UIC Law Review
No abstract provided.
Balancing Individual Privacy Rights And The Rights Of Trademark Owners In Access To The Whois, 38 J. Marshall L. Rev. 357 (2004), Jeffrey Stephen Sobek
Balancing Individual Privacy Rights And The Rights Of Trademark Owners In Access To The Whois, 38 J. Marshall L. Rev. 357 (2004), Jeffrey Stephen Sobek
UIC Law Review
No abstract provided.
The Inequitable Conduct Defense Lives On: 2003 Federal Circuit Decisions And Their Impact, 3 J. Marshall Rev. Intell. Prop. L. 189 (2004), Alan M. Kowalchyk, Thomas R. Johnson
The Inequitable Conduct Defense Lives On: 2003 Federal Circuit Decisions And Their Impact, 3 J. Marshall Rev. Intell. Prop. L. 189 (2004), Alan M. Kowalchyk, Thomas R. Johnson
UIC Review of Intellectual Property Law
The inequitable conduct defense remains a viable defense in patent litigation today, as illustrated in four 2003 Federal Circuit decisions. Though an alleged patent infringer must establish the elements of materiality and intent for a valid inequitable conduct defense, recent Federal Circuit decisions indicate that certain factual underpinnings bearing on materiality can raise an inference of intent. To most effectively counter this inference of intent, a plausible explanation for the questioned conduct should be provided by the patentee. However, in providing such plausible explanation, the patentee runs the risk of waiving privileged communications, which in turn may result in far …
“Intellectual Alchemy”: Securitization Of Intellectual Property As An Innovative Form Of Alternative Financing, 3 J. Marshall Rev. Intell. Prop. L. 307 (2004), John M. Gabala Jr.
“Intellectual Alchemy”: Securitization Of Intellectual Property As An Innovative Form Of Alternative Financing, 3 J. Marshall Rev. Intell. Prop. L. 307 (2004), John M. Gabala Jr.
UIC Review of Intellectual Property Law
While asset-securitization has been around since the early 1980’s, prior to the now widely known structuring of musician David Bowie’s music catalogue into saleable bonds in 1997, music royalties and copyrights were never before used in a securitization. At the time, Bowie’s catalogue had a proven royalty track record; however, the valuation of the actual bonds remained untested in the illegal music-downloading era of today. This comment explores the benefits of intellectual property-based securitizations and their common valuation approaches. In addition, it is argued that appropriate credit enhancements should be employed to protect future Bowie bond style deals against the …
Dividing The (Statutory) Baby Under Anton/Bauer: Using The Doctrine Of Implied License To Circumvent § 271(C) Protection For Components Of A Patented Combination, 3 J. Marshall Rev. Intell. Prop. L. 355 (2004), Daniel M. Lechleiter
UIC Review of Intellectual Property Law
In proscribing contributory infringement of patents, § 271(c) of Title 35 of the United States Code unambiguously provides statutory protection for certain unpatented components of patented combinations and certain unpatented materials or apparatuses used in patented processes. The doctrine of implied license provides a viable defense against claims of contributory infringement. Such a finding may result from a variety of related doctrines, such as the exhaustion doctrine or the doctrine of equitable estoppel. However, unlike the Supreme Court’s application of the former doctrine in Dawson Chemical Co. v. Rohm & Haas Co., involving an unpatentedchemical used in a patented process, …