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Articles 211 - 240 of 309
Full-Text Articles in Intellectual Property Law
Expanding The Protection Of Geographical Indications Of Origin Under Trips: "Old" Debate Or "New" Opportunity?, Irene Calboli
Expanding The Protection Of Geographical Indications Of Origin Under Trips: "Old" Debate Or "New" Opportunity?, Irene Calboli
Marquette Intellectual Property Law Review
This work briefly analyzes the issue of (geographical indications of origin) GI protection pre- and post-TRIPs and considers whether extension of the protection set forth by TRIPs is desirable for the international community. First, the work provides a brief overview of GI, the traditional rationale for their protection, and the protection granted thereof before the adoption of TRIPs. Next, the analysis turns to a description of the status of the law under TRIPs and the failed diplomatic agenda to expand the current protection. The recent developments on the debate on GI are explored, particularly for wine and spirits, with an …
Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi
Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi
Marquette Intellectual Property Law Review
The Article explores the mini-body of antitrust provisions to be found within TRIPs. It advocates a general-principles based and systematic interpretative approach of these provisions with a view to finding in them an antidote to the ratcheting up of IP protection otherwise encouraged by TRIPs. In this framework, it is argued that member countries retain considerable flexibility to incorporate pro-competitive inputs and to give appropriate consideration to non-intellectual property interests in adopting legislation at the intersection of antitrust and IP. The Article further develops criteria to assess the TRIPs-compatibility both of antitrust intervention and of generalized, ex ante legislative measures …
Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks, Olufunmilayo B. Arewa
Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks, Olufunmilayo B. Arewa
Marquette Intellectual Property Law Review
Intellectual property treatment of traditional or local knowledge is a major issue of contention today, particularly since the implementation of the TRIPs Agreement, which establishes minimum levels of intellectual property protection for members of the World Trade Organization. Discourse surrounding local knowledge is highly charged with accusations of "piracy" from Western countries countered with allegations of "biopiracy" from Third World countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. Intellectual property frameworks were formed in the nineteenth century during a period when evolutionary views of the development of human societies were paramount. Local knowledge was …
The International Intellectual Property Law System: New Actors, New Institutions, New Sources, Graeme B. Dinwoodie
The International Intellectual Property Law System: New Actors, New Institutions, New Sources, Graeme B. Dinwoodie
Marquette Intellectual Property Law Review
International intellectual property norms are ow being developed by a wide range of institutions- some national, some international, and some that do not fit neatly into either category; by bodies designed to address intellectual property; by trade and other bodies; and by actors public, private, and indeterminate. This new wave of international norm creation not only augments a growing body of substantive norms but also raises difficult structural questions about the future development of the international intellectual property system.
Trips: A Link Too Far? A Proposal For Procedural Restraints On Regulatory Linkage In The Wto, Sean Pager
Trips: A Link Too Far? A Proposal For Procedural Restraints On Regulatory Linkage In The Wto, Sean Pager
Marquette Intellectual Property Law Review
In dramatically expanding the reach of international intellectual property law, the TRIPs Agreement both epitomizes a new trend toward globalized regulation and signaled a controversial shift in approach by the WTO away from its narrow focus on trade. Equally controversial was the manner in which TRIPs came about. By strategically linking intellectual property protection to substantively unrelated trade negotiations, developed countries were able to push through a much more ambitious harmonization of IP law than would otherwise have been possible. Such package dealing making offers a powerful mechanism to advance global governance. However, unrestricted use of linkage strategies risks suboptimal …
Trips And Its Discontents, Peter K. Yu, Peter K. Yu
Trips And Its Discontents, Peter K. Yu, Peter K. Yu
Marquette Intellectual Property Law Review
This Article traces the development of the TRIPs Agreement and explores why less developed countries were dissatisfied with the international intellectual property system. It also looks at the future challenges confronting these countries and what they need to do to preserve the goals and intentions behind the TRIPs negotiations. The Article begins by describing the four different narratives used to explain the origins of the TRIPs Agreement. It contends that, while none of these narratives is complete, each of them provides valuable insight into understanding the context in which the Agreement was created. The Article then explores why less developed …
Accepting Exceptions?: A Comparative Approach To Experimental Use In U.S. And German Patent Law, Peter Ruess
Accepting Exceptions?: A Comparative Approach To Experimental Use In U.S. And German Patent Law, Peter Ruess
Marquette Intellectual Property Law Review
Experimental use is a keystone of research and innovation for some and obstacle in using a patent for others. In a genuine international field such as patent law, monitoring recent developments is best done in a comparative way. Particularly, the decision Merck v. Integra of the US Supreme Court and the new EU law, give reason to explore this field in more detail.
Soft-Science Examiners At The Uspto: A Non-Obvious Solution To Reduce Erroneous Patent Grants, Mandy Barbara Seuffert
Soft-Science Examiners At The Uspto: A Non-Obvious Solution To Reduce Erroneous Patent Grants, Mandy Barbara Seuffert
Marquette Intellectual Property Law Review
Soft science graduates can participate in patent application review, or secondary review, at the USPTO when there exists a question as to a patent's validity or obviousness. Four reasons militate in favor of including soft science patent application reviews: (1) the PTO can increase the number of examiners at a relatively low cost; (2) more time can be devoted to each questionable patent application review; (3) soft science examiners use complimentary skills and insights that might promote fewer erroneous patent approvals; and, (4) fewer parties will be forced to litigate over patent validity. This paper examines the rising problems associated …
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
Marquette Intellectual Property Law Review
One of the key elements that courts use to determine an appropriate statutory damage award in a copyright infringement case is the number of infringements of a copyright. How does a court determine the number of infringements when one infringing article has been printed six times in over one hundred copies of a magazine? Before the Copyright Act of 1976 went into effect, many courts adhered to the "multiplicity doctrine" and would have awarded statutory damages in the above scenarios for each of the six times that the infringing article was printed or the infringing song was played. Post-1976, however, …
Corporate Patents: Optimizing Organizational Responses To Innovation Opportunities And Invention Discoveries, Richard Gruner
Corporate Patents: Optimizing Organizational Responses To Innovation Opportunities And Invention Discoveries, Richard Gruner
Marquette Intellectual Property Law Review
This article examines the interplay between patent incentives and corporate innovation. It argues that innovation concerning today's complex technologies often requires efforts on a corporate organizational scale and that changes in patent and corporate laws are needed to fully promote effective and efficient innovation in corporate environments. The prevalence of patent ownership and exploitation by corporations reflects a fundamental but poorly appreciated truth about modern technological innovation. Patent incentives influencing individuals don't bring most new inventions to the public. Rather, in many recently developed technology areas, corporate-initiated efforts are the primary sources of publicly valuable innovation and, hence, the main …
Of The Inequals Of The Uruguay Round, Srividhya Ragavan, Srividhya Ragavan
Of The Inequals Of The Uruguay Round, Srividhya Ragavan, Srividhya Ragavan
Marquette Intellectual Property Law Review
Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring Members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities-like a looming public health crisis-to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to address national responsibilities that …
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Marquette Intellectual Property Law Review
The Honorable Richard A. Posner discusses the dangers presented by the propertization of intellectual property rights, particularly in the areas of copyright and patent. Unlike physical property, intellectual property rights are limited by duration, scope, and allowance of faire use. These limitations underlie the existence of a rich public domain that encourages the most valuable uses of intellectual property by reducing transaction costs and encouraging the creation of additional creative works.
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Marquette Intellectual Property Law Review
Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the …
Semiotics Of The Scandalous And The Immoral And The Disparaging: Section 2(A) Trademark Law After Lawrence V. Texas, Llewellyn Joseph Gibbons
Semiotics Of The Scandalous And The Immoral And The Disparaging: Section 2(A) Trademark Law After Lawrence V. Texas, Llewellyn Joseph Gibbons
Marquette Intellectual Property Law Review
This article explores whether the holding in Lawrence v. Texas may be extended to trademark law. Under section 2(a), some symbols may not serve as trademarks because they may be scandalous, immoral, or disparaging, which is of particular interest to the Queer community. For some, arguably at least a substantial composite of the American people, the relevant test group for scandal or immorality, under section 2(a), the mere existence of queers constitute scandal and immorality and terms of pride and endearment with which they express their sexuality in concrete form are a further example of immorality. Under these circumstances, Lawrence …
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
Marquette Intellectual Property Law Review
There has been a great deal of discussion on the desirability of software patents in the legal, economic, and technical academic literature. Case law is the basis of most of the legal literature on the topic. Typically, the basis of the economic literature on patents is the statistical analysis of large numbers of patents. The technical literature frequently hostile to patents often is based on an examination of a small number of pathologically bad patents The authors seek to overcome the inherent limitations of each category of article. The approach taken was to conduct a detailed, technical examination of the …
The Naked Licensing Doctrine Exposed: How Courts Interpret The Lanham Act To Require Licensors To Police Their Licensees & Why This Requirement Conflicts With Modern Licensing Realities & The Goals Of Trademark Law , Rudolph J. Kuss
Marquette Intellectual Property Law Review
This Comment discusses the naked licensing doctrine, under which trademark owners may lose their trademark protection through failing to exercise control over their licensees. Even though the Lanham Act holds that abandonment of trademark rights is only appropriate when a trademark has lost its significance, courts have held that a trademark owner may abandon its rights through naked licensing when it breaches its affirmative duty to police its licensees. In other words, these courts find abandonment even when there is no evidence that the quality of the goods and services sold under the trademark has declined. This Comment argues that …
The Inconsistency Between Section 301 And Trips: Counterproductive With Respect To The Future Of International Protection Of Intellectual Property Rights?, Lina M. Monten
Marquette Intellectual Property Law Review
This comment examines the inconsistency between continued international efforts to ensure uniform protection of intellectual property rights, most recently via the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), on the one hand; and the use of unilateral measures by the United States, specifically Section 301 of the Trade Act, to ensure greater protection for United States' intellectual property rights, on the other. This comment first discusses the historical development of international protection of intellectual property rights, specifically focusing on the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Property, …
U.S. V. Rxdepot: The Battle Between Canadian Store-Front Companies, The Fda And Brand-Name Companies, Michael Rosenquist
U.S. V. Rxdepot: The Battle Between Canadian Store-Front Companies, The Fda And Brand-Name Companies, Michael Rosenquist
Marquette Intellectual Property Law Review
Prescription drugs are taken by millions of Americans each year for everything from seasonal allergies to beating cancer. However, millions of Americans each year are without health insurance of some form of prescription drug coverage. When the costs of prescriptions are beyond those Americans' reach, where should they turn to for help? RxDepot, Inc. was a company founded by an entrepreneur, Carl Moore, who believed he had the answer to the problem. In 2002, he began opening stores in the United States where customers could bring in the prescription, have it sent to a Canadian pharmacy, and receive their prescriptions …
Message In A Bottleneck: The Need For Fcc-Mandated Interoperability Among Instant Messaging Providers, Matthew A. Goldberg
Message In A Bottleneck: The Need For Fcc-Mandated Interoperability Among Instant Messaging Providers, Matthew A. Goldberg
Marquette Intellectual Property Law Review
In August 2003, the Federal Communications Commission (FCC) reversed a ruling it had made in 2001 regarding regulation of America Online's (AOL) instant messaging program. Instant messaging (IM) is one of the Internet's most popular technologies, used recreationally and to facilitate business transactions. It is a major worldwide communications tool with the potential to serve as a catalyst for a new generation of Internet applications based on real-time computing. In contrast to Internet technologies like e-mail and access to the World Wide Web through browser programs like Microsoft Explorer or Mozilla's Firefox, the technical underpinnings of these IM systems are …
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
Marquette Intellectual Property Law Review
With technology constantly changing, the interaction between copyright law and technology is always at odds, especially since the evolution of the Internet. To keep up with the ever-changing Internet, Congress enacted the Digital Millennium Copyright Act; specifically, it created four safe harbors that are intended to protect entities from copyright infringement that qualify as online service providers. However, it seems that the courts have had trouble interpreting who is covered under these safe harbors, namely, as to what entities qualify under the first safe harbor "Transitory Digital Network Communications." There are only a few cases where entities have qualified under …
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
Marquette Intellectual Property Law Review
The AWCPA has been in effect for thirteen years, enough time for an evaluation of its effect on those who have been working within its framework. Has the Architectural Works Copyright Protection Act of 1990 (AWCPA) met the public's interests by encouraging original and innovative design? U.S. intellectual property laws are founded on balancing benefit to the public with reward and incentive to the author, while the standards of protection under the Berne Convention are grounded in the principle that copyright is a natural right of the author. The AWCPA of 1990 adopted the Berne Standard of according protection to …
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
Marquette Intellectual Property Law Review
Fictional characters are the backbone of the multi-billion dollar entertainment industry. Since the early twentieth century, the owners of fictional characters have recognized that there is money to be made in derivative products featuring those characters and move swiftly to stop infringing use of those characters. Learned Hand, in passing, allowed that fictional characters could be protected through copyright law if the characters were distinctly delineated. Since then, the courts have created a piecemeal protective-strategy involving trademark and copyright law to protect fictional characters. The Seventh Circuit in Gaiman v. McFarlane, continued using the traditional analysis, that copyrightability for a …
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Marquette Intellectual Property Law Review
This paper argues that it is time to replace the existing set of copyright rights by focusing on its true policy objectives. The paper identifies what is wrong with extant norms and spotlights the apparent chasm between the policy objectives and the norms. The paper proposes a new international copyright norm based on the Berne Convention's three-step test, in harmony with the U.S. fair use doctrine. The author suggests that fair use reflects an appropriate set of criteria to balance the rights of copyright holders and the needs and interests of users, which could serve as a basis to build …
Zippo Is Dying, Should It Be Dead?: The Exercise Of Personal Jurisdiction By U.S. Federal Courts Over Non-Domiciliary Defendants In Trademark Infringement Lawsuits Arising Out Of Cyberspace, Bunmi Awoyemi
Marquette Intellectual Property Law Review
Personal jurisdiction and the Internet has troubled the courts from the first. The analysis the court offered in Zippo Manufacturing Co. v. Zippo DOT Com, Inc. on its face appeared helpful for dealing with personal jurisdictional issues by the use of a "sliding scale": "[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." putting aside the failure of many courts to restrict Zippo to its facts, The author argues that the Zippo court's analysis of specific personal jurisdiction in the Internet or …
Scope Of Protection: Comparison Of German And English Courts' Case Law, Sasa Bavec
Scope Of Protection: Comparison Of German And English Courts' Case Law, Sasa Bavec
Marquette Intellectual Property Law Review
This article examines the scope of patent protection granted in Germany and the United Kingdom (UK). The author aims to review the legal framework, practice, and case law on the issue of the interpretation of patent scope in Germany and the UK. The author also discusses the legal principles applied by courts in Germany and the UK in different patent cases and examines the differences in the application of patent application. The author concludes that the only significant difference between Germany and the UK that can be identified is the inability of German courts to decide on the validity of …