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Articles 271 - 300 of 309
Full-Text Articles in Intellectual Property Law
The Trademark Registration System In Japan: A Firsthand Review And Exposition , Masaya Suzuki
The Trademark Registration System In Japan: A Firsthand Review And Exposition , Masaya Suzuki
Marquette Intellectual Property Law Review
One current topic of trademark law that has become a major issue in recent years is foreign trademark rights. The business world is shrinking, and large international outfits need to protect the goodwill in their trademarks on a global scale. The key to gaining international trademark rights is in understanding foreign countries' trademark systems. Masaya Suzuki, a trademark examiner in the Japanese Patent Office, offers insight to the Japanese trademark system. Mr. Suzuki provides a history of Japanese trademark law and rationales for the current system. He explains the workings of the system on a step-by-step basis giving the structure …
The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader
The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader
Marquette Intellectual Property Law Review
Honorable Randall Rader, of the United States Court of Appeals for the Federal Circuit discusses current criticisms of the Federal Circuit and the speed of which the Circuit sets precedent. Before addressing these issues, Judge Rader posits a belief that the standard by which the Circuit is being judged is incorrect. Judge Rader's speech gives a foundation by which a correct standard should be exacted, examples of the current atmosphere leading to the precedents being set, and generally addresses why the Federal Circuit is fundamentally unique from other jurisdictions.
Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich
Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich
Marquette Intellectual Property Law Review
Jonathan Mezrich argues that as businesses become more dependent upon computer software, they will also seek a means of protection for their investment in the software they purchase. Currently, a popular means of protection is through source code escrow. However, despite the current popularity of escrow accounts, Mr. Mezrich writes that these mechanisms may in fact not actually be necessary. He focuses on several key points that demonstrate this point including the life of the protected software, infrequency of escrow releases, and the move to open source applications. He also examines deficiencies of confidentiality, limited liability and indemnity as they …
Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers
Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers
Marquette Intellectual Property Law Review
In this article, Mr. Rogers examines the tension in the digital world between the application of (a) antitrust law, which promotes competition and (b) copyright law, which limits competition in order to promote progress in science and art. He reviews the prohibitions against the exercise of monopoly power in section 2 of the Sherman Act (15 U.S.C.) and proposes a test for anti-competitive conduct that includes close scrutiny of the contract restrictions and marketing practices of those that have significant market power. Arguing that product design decisions are not immune from antitrust review, he proposes examining alleged efficiency justifications for …
Measuring Fame: The Use Of Empirical Evidence In Dilution Actions , Adam Omar Shanti
Measuring Fame: The Use Of Empirical Evidence In Dilution Actions , Adam Omar Shanti
Marquette Intellectual Property Law Review
Adam Omar Shanti explores the concepts of dilution and famousness under Trademark Law. Dilution is a protection afforded "famous" trademarks by the Lanham Act. In essence, it prevents the usage of marks on dissimilar items that resemble a famous mark to prevent the "gradual whittling away or dispersion of the identity and hold upon the public mind." Dilution can occur by 1) blurring, 2) tarnishment, or 3) alteration. To determine whether a mark is "famous", eight subjective criteria are evaluated, which often produces inconsistencies among the courts. Mr. Shanti argues that an empirically derived test for fame must be created …
The Rise And Fall Of Fences: The Overbroad Protection Of The Anticybersquatting Consumer Protection Act , Jonathan M. Ward
The Rise And Fall Of Fences: The Overbroad Protection Of The Anticybersquatting Consumer Protection Act , Jonathan M. Ward
Marquette Intellectual Property Law Review
Jonathan Ward discusses viability of two means for resolution of disputes related to cybersquatting. Cybersquatting occurs when a party registers a domain name that contains someone else's trademark and then attempts to profit by selling or licensing the name to that party. Cybersquatting tends to be classified as direct cybersquatting and typosquatting, and actions involving domain name conflicts fall in four categories: 1) trademark infringement, 2) confusion of source, 3) dilution of a famous mark, and 4) bad faith registration. Recognizing the growing issue of cybersquatting, Congress passed the Anitcybersquatting Consumer Protection Act in 1999, which provided a litigious avenue …
"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen
"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen
Marquette Intellectual Property Law Review
An objective of copyright law is to promote creativity and the dissemination of ideas by granting artists, writers, and other creators of artistic works a limited monopoly in their works. MP3 files consist of a digital audio compression algorithm that makes an audio file smaller without reducing sound quality. One problem created by this technology is that when combined with the Internet, millions of people can simultaneously access, reproduce and distribute copyrighted works in digitized form without authorization. Under this premise, Ms. Mullen presents two case studies concerning MP3.com and Napster, in which she relates their various characteristics to copyright …
Digital Copyright, By Jessica Litman , J. Ryan Miller
Digital Copyright, By Jessica Litman , J. Ryan Miller
Marquette Intellectual Property Law Review
Jessica Litman's book focuses on the Copyright Act, in relation to modern entertainment technology. For example, each time an image from the Internet is viewed through a personal computer, the viewer has reproduced the original image, because a computer's RAM makes a temporary copy in order to allow the image to be viewed. The entertainment industry's concern about potential copyright infringement resulted in the enactment of the Digital Millennium Copyright Act. Professor Litman provides a history of the negotiation and lobbying that created the Copyright Act of 1976, and then provides a commentary regarding Napster and the expanding amount of …
Copyright Law In The Digital Age: Malum In Se And Malum Prohibitum, Sheldon W. Halpern
Copyright Law In The Digital Age: Malum In Se And Malum Prohibitum, Sheldon W. Halpern
Marquette Intellectual Property Law Review
The scale of copyright piracy has changed, allowing creative works to be distributed globally with a click of a mouse. People's attitudes towards infringing on someone else's protected work have changed as well due to the simplicity and speed of the digital infringing process. This lecture discusses how one can tailor copyright law to accommodate technological changes. First, the lecturer discusses how an act of infringement needs to be defined as malum in se rather than malum prohibitum in order for infringement to be taken seriously. The lecturer suggests that a radically different approach to some of the fundamental principles …
Death Of A Myth: The Patenting Of Internet Business Models After State Street Bank, William D. Wiese
Death Of A Myth: The Patenting Of Internet Business Models After State Street Bank, William D. Wiese
Marquette Intellectual Property Law Review
The case of State Street Bank & Trust Co. v. Signature Financial Group, Inc., which extended patent protection to a computerized financial method, was regarded by many as a revolutionary expansion of patentable subject matter. The author, however, argues that this notion is overstated. The author explains that the State Street Bank decision will be of little consequence because the business exception was a myth in the first place. The author reasons that courts often cited other bars to patentability when denying business methods protection. Furthermore, the author argues that the recent relaxation of the patentability requirements of computer related …
The United States And The Madrid Protocol: A Time To Decline, A Time To Accede, Carlo Cotrone
The United States And The Madrid Protocol: A Time To Decline, A Time To Accede, Carlo Cotrone
Marquette Intellectual Property Law Review
The Madrid Agreement enables trademark owners in signatory countries to secure international trademark registration by filing one application instead of filing separate applications in each foreign country's trademark office. The United States has never acceded to the Agreement because critics have held that the Agreement favors registration-based trademark systems rather than the use-based system found in the United States. Accordingly, the Madrid Protocol was drafted to address the United States' objections to the Agreement and to provide an international registration vehicle for countries that declined to participate Agreement. In this article, the author examines the Madrid Agreement, compares the Agreement …
A Higher Nonobviousness Standard For Gene Patents: Protecting Biomedical Research From The Big Chill, Sara Dastgheib-Vinarov
A Higher Nonobviousness Standard For Gene Patents: Protecting Biomedical Research From The Big Chill, Sara Dastgheib-Vinarov
Marquette Intellectual Property Law Review
In In re Deuel, the United States Court of Appeals for the Federal Circuit ruled in favor of a patent applicant and found that DNA molecules encoding a protein were nonobvious under section 103 of the Patent Act. Since then, companies specializing in genomic research have filed numerous DNA sequence applications, instigating a troubling trend of patent filings within the biotechnology field. Currently these companies are stockpiling partial DNA sequence patents which have no known function. This Comment presents scientific, political, religious, and ethical justifications for heightening the nonobviousness standard for gene-related patents under section 103 of the Patent Act. …
Global Technology Protection: Moving Past The Treaty, Todd M. Rowe
Global Technology Protection: Moving Past The Treaty, Todd M. Rowe
Marquette Intellectual Property Law Review
This Comment examines whether the conformity achieved by international technology treaties is at the expense of utility. Specifically, the author posits that international agreements do not serve the needs of rich and poor nations alike. Instead, the author advocates for increased autonomy by claiming better solutions will be produced when nations enter bi-lateral agreements. In reaching this conclusion, the Comment analyzes the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the problems created for developing nations through global technology protections. The author uses the United States' patent, copyright, and trademark protections as an illustrative example of how successful …
Dickinson V Zurko: An Amicus Brief, Thomas G. Field, Craig Allen Nard, John F. Duffy
Dickinson V Zurko: An Amicus Brief, Thomas G. Field, Craig Allen Nard, John F. Duffy
Marquette Intellectual Property Law Review
Professors Field, Nard, and Duffy submitted an amicus brief to the Supreme Court in the case of Dickinson v. Zurko. In Dickinson, the Federal Circuit concluded that the Patent and Trademark Office's factual findings must be reviewed under a clearly erroneous standard and not the substantial evidence standard set out in the Administrative Procedure Act. However, the amicus brief asserted that the PTO is subject to the standards of judicial review set forth in the APA.
No Trade Dress Protection For Anything Disclosed In A Patent: A Defense Of The Supreme Court's Per Se Restriction, Glen A. Weitzer
No Trade Dress Protection For Anything Disclosed In A Patent: A Defense Of The Supreme Court's Per Se Restriction, Glen A. Weitzer
Marquette Intellectual Property Law Review
Conflicts between patent and trademark law arise when the owner of a patent seeks to protect the physical configuration disclosed in a patent. Patent law requires that information in a patent be dedicated to the public upon expiration of the patent; however, trademark law can be used upon expiration of the patent to continue to exclude certain aspects of the art disclosed in the patent. This note explores existing jurisprudence on the conflict between patent and trademark law and proposes a remedy to this conflict.
Using Alternative Dispute Resolution To Resolve Patent Litigation: A Survey Of Patent Litigators , Eugene R. Quinn, Jr.
Using Alternative Dispute Resolution To Resolve Patent Litigation: A Survey Of Patent Litigators , Eugene R. Quinn, Jr.
Marquette Intellectual Property Law Review
Mr. Quinn provides an empirical overview of patent litigation, after which, he notes that the true growth in patent litigation has not occurred in the courtroom trial of disputes, but in the pretrial process. He concludes that increasing reliance on alternative dispute resolution, particularly mediation, is responsible for both the dramatic number of cases terminating during the pretrial process and the constant number of patent trials. The author reports the results of a survey taken of over one hundred patent litigators. The focus of the survey was to determine the attitude of patent litigators toward mediation or arbitration and their …
The Supreme Court And Patent Law: Does Shallow Reasoning Lead To Thin Law, Donald S. Chisum
The Supreme Court And Patent Law: Does Shallow Reasoning Lead To Thin Law, Donald S. Chisum
Marquette Intellectual Property Law Review
Professor Chisum explains that the role of the Federal Circuit Court as the "Supreme Court" of patent law may be changing. He notes the significance of recent United States Supreme Court cases addressing patent law issues. In addition, Professor Chisum evaluates the quality of recent landmark decisions in which the Court has examined patent issues. Chisum first notes that the general attitude of the Court reflects skepticism and hostility toward the patent system. In addition, Chisum considers the quality of reasoning undertaken by the Supreme Court and argues that, as opposed to the Federal Circuit, it is often weak, illogical, …
Is This Conflict Really Necessary?: Resolving An Ostensible Conflict Between Patent Law And Federal Trademark Law, Thomas F. Cotter
Is This Conflict Really Necessary?: Resolving An Ostensible Conflict Between Patent Law And Federal Trademark Law, Thomas F. Cotter
Marquette Intellectual Property Law Review
Professor Cotter discusses the inherent conflict between patent and trademark law in product configuration - a species of trade dress - that is disclosed within the text of a utility patent or on which the claims of a utility patent read. Commentators have disagreed as to whether or not such disclosed features should enter the public domain upon expiration of the patent, regardless of whether they would otherwise qualify for trademark protection. Professor Cotter illustrates why the conventional belief that patents are monopolies is, in general, false. He then provides a brief overview of relevant trademark law principles. Professor next …
A Right Without A Remedy: The Unenforceable Medical Procedure Patent , Scott D. Anderson
A Right Without A Remedy: The Unenforceable Medical Procedure Patent , Scott D. Anderson
Marquette Intellectual Property Law Review
Mr. Anderson discusses the current status of medical procedure patents in the United States through the examination of a survey conducted on patent law and the patentability of inventions. Mr. Anderson examines the history of medical process patents and the controversy surrounding such patents and offers an analysis of current law. The analysis focuses on the Pallin v. Singer decision and the congressional reaction to the holding that eventually led to the passage of 35 U.S.C. § 287(c). As a result of the Pallin decision and 35 U.S.C. § 287(c), a patent may be granted for a medical procedure, but …
March-In Rights Under The Bayh-Dole Act: Public Access To Federally Funded Research , Mary Eberle
March-In Rights Under The Bayh-Dole Act: Public Access To Federally Funded Research , Mary Eberle
Marquette Intellectual Property Law Review
Ms. Eberle examines the Bayh-Doyle Act of 1980, which allows small entities to retain patent title to inventions arising from federally funded research. The Act includes a march-in rights provision, which permits a petitioning third party to force the small entity to grant the petitioner a license where the original licensee fails to commercialize the technology. Ms. Eberle discusses the substance of the Act, focusing on its march-in rights provision. Next, Eberle chronicles a march-in rights attempt by the biotechnology company CellPro to obtain a license to Johns Hopkins University patents and the subsequent court battle. After offering an analysis …
The Doctrine Of Equivalents Into The Year 2000: The Line Is Becoming Brighter For Some But Remains Dim For Others, William T. Kryger
The Doctrine Of Equivalents Into The Year 2000: The Line Is Becoming Brighter For Some But Remains Dim For Others, William T. Kryger
Marquette Intellectual Property Law Review
Under the holding of Warner-Jenkinson Co. v. Hilton-Davis Chemical Co., a court will not limit an inventor to the sole remedy of literal infringement. The inventor may also rely on the "doctrine of equivalents," which permits finding of infringement if there is equivalence between the elements of the accused product and the claimed elements of the patented invention. With this backdrop, Mr. Kryger analyzes the courts' struggle in developing a bright-line rule to protect patentees from piracy and fraud on their patents. Mr. Kryger first chronicles the evolution of the doctrine of equivalents through caselaw, particularly Graver Tank v. Linde …
Deserved Deference: Reconsidering The De Novo Standard Of Review For Claim Construction, M. Reed Staheli
Deserved Deference: Reconsidering The De Novo Standard Of Review For Claim Construction, M. Reed Staheli
Marquette Intellectual Property Law Review
Markman v. Westview Instruments, Inc. (Markman II) concluded that patent claim construction is "exclusively within the province of the court," not the jury. However, it did not mention the appropriate standard for appellate review of claim construction, and the Federal Circuit has disagreed on the proper standard of review. As such, Mr. Staheli examines the evidentiary principles of claim construction adopted by the Federal Circuit and explores the inherent reliance a court places upon technical evidence when interpreting a complex claim, focusing on the factual disputes and determinations of credibility that result from a dependence on technical evidence. After a …
The New World Of International Trademark Law, Marshall A. Leaffer
The New World Of International Trademark Law, Marshall A. Leaffer
Marquette Intellectual Property Law Review
Professor Leaffer discusses how the globalization process has forced evolution of international norms and favorably changed the face of trademark law. Professor Leaffer reviews the new developments in major treaties, the Madrid Protocol and the Trademark Law Treaty, and regional treaties, such as the new Community Trademark, and how they continue to build upon the progress of the Paris Convention toward harmonization in the world of international trademark law. Professor Leaffer explains that the benefits from the trend toward harmonization will be enjoyed not only by trademark owners, but also by consumers whose welfare will be enhanced by harmonization.
Trademark Harmonization: Norms, Names & Nonsense, Kenneth L. Port
Trademark Harmonization: Norms, Names & Nonsense, Kenneth L. Port
Marquette Intellectual Property Law Review
Professor Port provides a comment on Marshall A. Leaffer's article that offers another viewpoint on the important issue of the globalization process and trademark law. Rather than seeking ideals of international trademark laws through harmonization, Professor Port suggests that a better objective is internationalization. Professor Port explains that harmonization of international trademark law will be impossible as long as world communities adhere to territorial justifications for sovereignty and jurisdiction. Because goods flow in the reality of an international market, Professor Port reasons that initiatives to avoid inefficiencies and uncertainties of global trademark laws should be directed toward internationalization.
Trade Secrets And The New Realities Of The Internet Age, Ari B. Good
Trade Secrets And The New Realities Of The Internet Age, Ari B. Good
Marquette Intellectual Property Law Review
The author discusses the risks of industrial espionage and the misappropriation of trade secrets in view of the explosive growth of the internet. Good examines the legal challenges facing the evolution of trade secret law and proposes measures that will promote continued protection of proprietary information.
The Smell Of Success: Trade Dress Protection For Scent Marks, Faye M. Hammersley
The Smell Of Success: Trade Dress Protection For Scent Marks, Faye M. Hammersley
Marquette Intellectual Property Law Review
The author discusses the implications of the United States Patent and Trademark Trial and Appeal Board decision In re Clarke, where the Patent and Trademark Office first issued trademark registration for a fragrance. Hammersley discusses expanding trade dress protection to include scents, the positive aspects of scent protection, and the potential of registering scents under current legal standards.
No Protection, No Progress For Graphical User Interfaces, Jane M. Rolling
No Protection, No Progress For Graphical User Interfaces, Jane M. Rolling
Marquette Intellectual Property Law Review
The Author examines the courts' reluctance to grant intellectual property protection to graphic user interfaces, the visual elements of computer software. Rolling suggests that software manufacturers should seek trade dress protection of graphic user interfaces.