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Law Faculty Publications

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Full-Text Articles in Intellectual Property Law

Patent Law Viewed Through An Evidentiary Lens: The "Suggestion Test" As A Rule Of Evidence, Christopher A. Cotropia Jan 2006

Patent Law Viewed Through An Evidentiary Lens: The "Suggestion Test" As A Rule Of Evidence, Christopher A. Cotropia

Law Faculty Publications

The Federal Circuit's recent nonobviousness jurisprudence has been the subject of much criticism. Reports from the Federal Trade Commission and the National Research Council and a pending petition for certiorari to the Supreme Court all conclude that the Federal Circuit has improperly relaxed the nonobviousness standard. Most of this criticism focuses on the Federal Circuit's implementation of part of the nonobviousness inquiry - the suggestion test. The suggestion test queries whether a suggestion to make the invention existed before the invention's creation. The Federal Circuit allegedly requires a suggestion to come solely from prior art references. The court ignores other …

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Once And Future Copyright, James Gibson Nov 2005

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

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Google's (Fair) Use Of Copyrighted Work, James Gibson Oct 2005

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

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Patent Claim Interpretation Methodologies And Their Claim Scope Paradigms, Christopher A. Cotropia Jan 2005

Patent Claim Interpretation Methodologies And Their Claim Scope Paradigms, Christopher A. Cotropia

Law Faculty Publications

The optimal scope of patent protection is an issue with which patent system observers have struggled for decades. Various patent doctrines have been recognized as tools for creating specific patent scopes and, as a result, implementing specific patent theories. One area of patent law that has not been addressed in the discussion on patent scope and theories is patent claim interpretation. This omission is particularly noteworthy because of the substantive role patent claims and the interpretation thereof play in the patent system, namely the framing of questions of patent infringement and validity. This Article will explore the not-yet-discussed relationship between …

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Entrance Ramps, Tolls, And Express Lanes – Proposals For Decreasing Traffic Congestion In The Patent Office, Kristen Jakobsen Osenga Jan 2005

Entrance Ramps, Tolls, And Express Lanes – Proposals For Decreasing Traffic Congestion In The Patent Office, Kristen Jakobsen Osenga

Law Faculty Publications

This Article proposes implementing a multitier patent system by the creation of two additional "roads" or routes that a patent application may follow. Because many patents are not sought with the intention of pursuing the traditional patent reward of commercialization or profit through access control, that is, the exercise of the limited patent monopoly, there is no reason for every single application to follow the current route. The creation of an auxiliary, or "side road," would decrease crowding on the current patent grant highway while still allowing the nontraditional applications to enter and traverse the patent grant system with different …

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Patent Claim Interpretation And Information Costs, Christopher A. Cotropia Jan 2005

Patent Claim Interpretation And Information Costs, Christopher A. Cotropia

Law Faculty Publications

The concept of invention is crucial to patent law. Inventions of patentable quality are what the patent system is trying to encourage. In order to provide this incentive to produce such inventions, the patent system must provide protection for the invention. The problem the patent system runs into is that inventions are dijjicult to define-the dijjiculty stemming in part from the intangible nature of inventions. As a result, patent law encounters an information cost problem. Everyone in the patent system needs information about the invention, but the invention's intangibleness makes this information costly to produce, collect, and comprehend. Patent law …

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Re-Reifying Data, James Gibson Nov 2004

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

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Counterclaims, The Well-Pleaded Complaint, And Federal Jurisdiction, Christopher A. Cotropia Jan 2004

Counterclaims, The Well-Pleaded Complaint, And Federal Jurisdiction, Christopher A. Cotropia

Law Faculty Publications

This Article proceeds as follows: Part I of the Article begins by laying the statutory and constitutional foundation of "arising under" jurisdiction. The current connection between "arising under" jurisdiction and federal question jurisdiction is discussed. Part I also fully sets forth the well-pleaded complaint rule, and discusses removal jurisdiction, which is governed by the concept of "arising under" jurisdiction. As necessary background to understanding the Court's reasoning in Holmes and why the case prompts a general discussion on federal jurisdiction implications, Part I concludes by defining a district court's jurisdiction over patent cases, the Federal Circuit's appellate jurisdiction over patent …

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How Dewey Classify Oclc's Lawsuit, Roger V. Skalbeck Jan 2003

How Dewey Classify Oclc's Lawsuit, Roger V. Skalbeck

Law Faculty Publications

In order to understand the nature of the rights asserted here, it is important to properly classify the Dewey Decimal lawsuit. To these ends, this article presents analysis aimed to better define its scope and legal framework. This is not an analysis of the merits of the claims, let alone a prediction as to the outcome. The issues are considered in the following three sections. In closing, I offer a lighthearted suggestion as to how this suit might be resolved outside of litigation or settlement.

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Rethinking Reexamination Reform: Is It Time For Corrective Surgery, Or Is It Time To Amputate?, Kristen Jakobsen Osenga Jan 2003

Rethinking Reexamination Reform: Is It Time For Corrective Surgery, Or Is It Time To Amputate?, Kristen Jakobsen Osenga

Law Faculty Publications

Reexamination was introduced as a mechanism for curing potentially invalid patents, as an antidote to the public's and the judiciary's lack of confidence in the PTO and the patent system in general. Instead of a curative fix, however, the reexamination provisions are more akin to a diseased or lame leg on the body of U.S. patent law. Reexamination fails to support the burden of public confidence it was intended to carry. It does not act in harmony with other limbs on the body of patent law or with other bodies of U.S. or foreign law. Over the years, Congress has …

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Copyright Law Tackles Yet Another Challenge: The Electronic Frontier Of The World Wide Web, April Mara Barton Jan 1998

Copyright Law Tackles Yet Another Challenge: The Electronic Frontier Of The World Wide Web, April Mara Barton

Law Faculty Publications

The Internet has seen an explosion of popularity over the past few years. Government workers and university scholars of yesterday's Internet must now share today's Information Superhighway with big business, commercial industry, and hundreds of thousands of recreational users. With the growing popularity of the Internet, incidents of online fraud, theft, piracy, and infringement have grown correspondingly.

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An Eco-Esc Pendulum Of Copyright: A Deconstructive Perspective Of The Copyright/Authorship System, Dana Neacsu Jan 1994

An Eco-Esc Pendulum Of Copyright: A Deconstructive Perspective Of The Copyright/Authorship System, Dana Neacsu

Law Faculty Publications

The thesis of this paper is neither new, nor subtle. It has, in fact, been a recurrent theme in many writings concerned with the interests in copyright and their effects in the present world. My LLM student concern was with the perversion of domestic copyright provisions from an incentive for learning and progress - within whatever limits that goal was fairly found in the statute and case decisions - into an insurmountable international obstacle to learning and education. Unfortunately, this 1993/4 LLM thesis remains as actual today as it was then.

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