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Articles 121 - 150 of 550
Full-Text Articles in Intellectual Property Law
Impact Of Lexmark Case On Patent Exhaustion, 16 J. Marshall Rev. Intell. Prop. L. 487 (2017), Gouthami Vanam
Impact Of Lexmark Case On Patent Exhaustion, 16 J. Marshall Rev. Intell. Prop. L. 487 (2017), Gouthami Vanam
UIC Review of Intellectual Property Law
In recent times, there exists a lot of confusion as to the patent exhaustion doctrine and its implications on conditional sales and international patent exhaustion. Current patent exhaustion laws do not allow for international patent exhaustion, whereas current copyright exhaustion laws favor removal of geographical boundaries and facilitate commerce. This comment examines the evolution of the patent exhaustion doctrine and compares the Lexmark Int l, Inc. v. Impression Prods. case to Kirtsaeng v. John Wiley & Sons, Inc. and proposes solution in favor of international patent exhaustion.
Trying On Trade Dress: Using Trade Dress To Protect The Look And Feel Of Video Games, 17 J. Marshall Rev. Intell. Prop. L. 109 (2017), Benjamin Lockyer
Trying On Trade Dress: Using Trade Dress To Protect The Look And Feel Of Video Games, 17 J. Marshall Rev. Intell. Prop. L. 109 (2017), Benjamin Lockyer
UIC Review of Intellectual Property Law
With the creation of video games for smart phones, video games are some of the most accessible forms of entertainment on the market. What was once only an attraction inside the designated location of arcade halls, is now within the grip of nearly every smart phone user. With new game apps for smart phones going viral on a regular basis, the video game industry has become one of the most profitable in the entertainment realm. However, the industry's overall success has also led to increased competition amongst game developers. As a result, competing developers create near exact copies of highly …
Plausibility Under The Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188 (2017), Michelle Evans
Plausibility Under The Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188 (2017), Michelle Evans
UIC Review of Intellectual Property Law
With the recent passage of the Defend Trade Secrets Act (DTSA), a federal civil cause of action for trade secret misappropriation is now available. To add some familiarity to the Act, the drafters incorporated definitions similar to those of the Uniform Trade Secrets Act (UTSA). However, even though the provisions may seem familiar, there is a new requirement that is not obvious on the face of the statute- the plausibility requirement for pleading under the federal rules. To understand plausibility; however, one must understand the DTSA. Unfortunately, there is no guidance from the DTSA that can aid interpretation of the …
Conceptual Expression In A Copyright World: Protecting Ideas From The Shadow Of Preemption: A Call For Legislative Action, 17 J. Marshall Rev. Intell. Prop. L. 1 (2017), John R. Kettle Iii
Conceptual Expression In A Copyright World: Protecting Ideas From The Shadow Of Preemption: A Call For Legislative Action, 17 J. Marshall Rev. Intell. Prop. L. 1 (2017), John R. Kettle Iii
UIC Review of Intellectual Property Law
The notion that an idea creator ought to be compensated for the product of his or her mind continues to transcend and develop in the realm of intellectual property. Although many scholars have penned that there is a value to conceptual expression in the disclosure of the idea apart from its future expression, there are others that blur the idea/expression dichotomy and take the position that ideas should be as free as air. Many academics tend to reject the traditional theories of protection, and proscribe alternatives in providing protection to conceptual expression, my article adds to and critiques the discourse …
Write Like A Patent Litigator: Avoid Common Mistakes Made By Non-Patent Lawyers, 17 J. Marshall Rev. Intell. Prop. L. 141 (2017), Ted L. Field
UIC Review of Intellectual Property Law
Following, or not following, conventions as an attorney may lead to a question of credibility. Particularly with patent law, there are certain conventions and usage errors commonly made by practitioners who are not familiar with patent law. While these errors may be irrelevant in plain English, they are often important components in the specialized language of patent law. This article discusses the importance of these components by examining examples of particular usages that often give rise to error.
An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge
An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge
UIC Review of Intellectual Property Law
This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright …
Alice-Backed Securitization: Start-Ups’ New Alternative To Venture Capital, 16 J. Marshall Rev. Intell. Prop. L. 246 (2017), Robert Laverty
Alice-Backed Securitization: Start-Ups’ New Alternative To Venture Capital, 16 J. Marshall Rev. Intell. Prop. L. 246 (2017), Robert Laverty
UIC Review of Intellectual Property Law
As of 2016, the United States software industry added $1.07 trillion in total value to the U.S. economy alone. Today, it’s no mystery that high-tech solutions are embedded in the fabric of our world. Venture Capital has been the dominant source of funding for startup and midsize high-tech firms for the last two decades. However, Venture Capital funding comes at a hefty cost. Young developing high-tech firms are often forced to bargain large shares of their ownership and managerial control to receive the funding they need to realize their potential. But, what if high-tech firms didn’t have to make such …
Blocking Ad Blockers, 16 J. Marshall Rev. Intell. Prop. L. 272 (2017), Tyler Barbacovi
Blocking Ad Blockers, 16 J. Marshall Rev. Intell. Prop. L. 272 (2017), Tyler Barbacovi
UIC Review of Intellectual Property Law
The prevalence of ad blocking software (software that prevents the loading of web based advertisements) is a growing problem for website owners and content creators who rely on advertising revenue to earn money. While the number of ad block users continues to increase, there has thus far been no significant legal challenge to ad blocking in the United States. This comment examines how a website owner, through a combination of technological improvements and the anti-circumvention provisions of the Digital Millennium Copyright Act, could successfully raise a legal challenge against the purveyors of ad blocking software.
If It's In The Game: Is There Liability For User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017), Jason Zenor
UIC Review of Intellectual Property Law
In cases like Keller and No Doubt v. Activision, the federal courts held that the use of celebrity's likeness was a violation of the right of publicity. In response, EA Sports suspended production of college sports games. But most games still allow for gamers to create their own avatars. With game systems now being connected, gamers can download user-created content many of which will have the likeness of famous people, thus circumventing the holdings in Keller and No Doubt. Accordingly, this article examines how this type of user generated content fits within the law of appropriation. First, this article discusses …
Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford
UIC Review of Intellectual Property Law
Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the …
Gotta Catch . . . A Lawsuit? A Legal Insight Into The Intellectual, Civil, And Criminal Battlefield Pokémon Go Has Downloaded Onto Smartphones And Properties Around The World, 16 J. Marshall Rev. Intell. Prop. L. 329 (2017), Andrew Rossow
UIC Review of Intellectual Property Law
Our society, and its millennials, have entered the digital age, whereby almost everything is conducted and perpetuated through electronic devices. Smartphones have dominated the mobile device market and have allowed its users to download mobile applications and games to the device. Pokémon Go, is the latest trend in mobile gaming and the start to a bright future of augmented reality. But what happens when augmented reality meets the physical world? Do our modern-day statutes and laws extend into the cyberspace that it is augmented reality? What happens when a user of an augmented reality game enters onto the property of …
The Ambush At Rio, 16 J. Marshall Rev. Intell. Prop. L. 350 (2017), Adam Epstein
The Ambush At Rio, 16 J. Marshall Rev. Intell. Prop. L. 350 (2017), Adam Epstein
UIC Review of Intellectual Property Law
The purpose of this article is to explore the role of the International Olympic Committee’s (IOC) codified marketing policy known as Rule 40 which emerged to prevent ambush marketing of its biennial events. Rule 40 has quickly evolved into a controversial rule for athletes, coaches and sponsors alike who are involved in the Olympic Movement. The IOC believes that social media is a ubiquitous threat to its intellectual property during the Olympic Games akin to traditional print and television ambush marketing campaigns. As a result, the 2016 Rio De Janeiro (Rio) Summer Olympic Games represented the most intense clash between …
The Courts' Interpretations Of Legitimate Business Purposes, With Applications To Lexmark, 16 J. Marshall Rev. Intell. Prop. L. 411 (2017), W. Lesser
UIC Review of Intellectual Property Law
Courts frequently must assess 'intent'. This article applies to the interpretation the intent of "legitimate business purposes" as a justification for restrictive use licensing agreements for patented products. Generally, the 'first sale' doctrine terminates the use rights of the patent holder. However, if the sale is conditioned on some use limitations and violators of those terms are liable for infringement. The courts, suggested in Mitchell v. Hawley (1872) and formalized in Mallinckrodt v. Medipart (1992), have allowed use restrictions based on license terms. Restrictions are disallowed under the affirmative defense of patent invalidity, such as from an antitrust violation. This …
It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders
UIC Review of Intellectual Property Law
There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.
Candidates Shouldn’T “Cruz” Through Political Campaigns: Why Asking For Permission To Use Music Is Becoming So Important On The Campaign Trail, 16 J. Marshall Rev. Intell. Prop. L. 457 (2017), Courtney Willits
UIC Review of Intellectual Property Law
Music has always been used by candidates running for political office as a way to advertise themselves to potential voters. Throughout the years, a battle between political candidates and musicians has grown due to problems caused by music licensing. Currently, an issue in law exists between politicians who obtain proper music licenses versus musicians who have a right of publicity, stating they do not want to be associated with certain candidates' political views. This comment analyzes the recent copyright case against former 2016 presidential candidate Ted Cruz, and the role it could play in this area of law. Additionally, this …
Putting Yourself In The Shoes Of A Patent Examiner: Overview Of The United States Patent And Trademark Office (Uspto) Patent Examiner Production (Count) System, 17 J. Marshall Rev. Intell. Prop. L. 32 (2017), Naira Rezende Simmons
Putting Yourself In The Shoes Of A Patent Examiner: Overview Of The United States Patent And Trademark Office (Uspto) Patent Examiner Production (Count) System, 17 J. Marshall Rev. Intell. Prop. L. 32 (2017), Naira Rezende Simmons
UIC Review of Intellectual Property Law
The mission of the United States Patent and Trademark Office (USPTO) is to ensure that the Intellectual Property system contributes to a strong global economy, encourages investment in innovation, and fosters entrepreneurial spirit. In order to ensure that the large volume of newly filed patent applications are examined in a reasonable timeframe, the USPTO has a system for determining the average amount of time an examiner should spend examining a patent application. Under the current production system, productivity is assessed based on Production Units (“PUs”) achieved relative to the Examiner’s production goal. The production goal is calculated for each examiner …
The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru
UIC Review of Intellectual Property Law
The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would …
Living To See His Glory Days: Why Hamilton's Lin Manuel Miranda Is Not Liable For Copyright Infringement, But Other Writers And Composers Are, 17 J. Marshall Rev. Intell. Prop. L. 92 (2017), Deidre Davis
UIC Review of Intellectual Property Law
This comment discusses the idea of individuals receiving preliminary permissions of copyrighted works before using the work as a component of their own. By doing so, an individual has a better opportunity to avoid copyright infringement. Lin Manuel Miranda, the writer of the musical Hamilton, took preliminary measures to avoid copyright infringement, and these measures will be examined throughout this comment. Copyright infringement cases and other infringement cases will be addressed, as well as a proposal to simplify obtaining preliminary permissions in copyrighted works.
Samsung V. Apple, Life Technologies V. Promega, Sca Hygiene Products V. First Quality Baby Products, Tc Heartland V. Kraft, Impression Products V. Lexmark, And Sandoz V. Amgen: The U.S. Supreme Court Decides Six Patent Cases In 2016-17, 17 J. Marshall Rev. Intell. Prop. L. 162 (2017), Sue Ann Ganske
UIC Review of Intellectual Property Law
The United States Supreme Court decided six very important patent cases in the 2016-17 term, Samsung Electronics Co., Ltd. v. Apple Inc., called the “design patent case of the century,” Life Technologies Corp. v. Promega Corp., an international supply chain patent case, SCA Hygiene Products v. First Quality Baby Products, LLC, where the doctrine of laches was not a defense in a patent infringement case, TC Heartland LLC v. Kraft Foods Group Brands LLC, which dealt with patent venue statute, Impression Products, Inc. v. Lexmark International, Inc., which held that the authorized first sale of a patented item exhausts the …
Avoiding The Rabbit Hole: An Ontological Model For Determining Section 101 Patent-Eligibility Under Alice, 17 J. Marshall Rev. Intell. Prop. L. 192 (2017), Alan J. Gocha
UIC Review of Intellectual Property Law
In Alice Corp. Pty. v. CLS Bank International, 134 S. Ct. 2347 (2014), the Supreme Court established a two-part test for determining whether a patent claim is directed at the patent-ineligible category of abstract ideas. Unfortunately, however, the Supreme Court in Alice offered little clarification as to what constitutes an abstract idea—leaving innovators and competitors uncertain as to their legal rights. Likewise, instead of creating a definitive test, the Federal Circuit has proceeded by engaging in self-referential argument by analogy. This article, Avoiding the Rabbit Hole: An Ontological Model for Determining Section 101 Patent-Eligibility under Alice, argues that the Supreme …
Traditional Knowledge Digital Library: "A Silver Bullet" In The War Against Biopiracy?, 17 J. Marshall Rev. Intell. Prop. L. 214 (2017), Seemantani Sharma
Traditional Knowledge Digital Library: "A Silver Bullet" In The War Against Biopiracy?, 17 J. Marshall Rev. Intell. Prop. L. 214 (2017), Seemantani Sharma
UIC Review of Intellectual Property Law
India has long been a victim of the emotionally expulsive wrong of biopiracy at the behest of Western corporations. Traditional Knowledge Digital Library (TKDL), a digital repository of traditional medicinal knowledge was a reaction to this act of “unjust enrichment”. While there is ample scholarly discourse on the biopiracy of Indian traditional knowledge (TK), there is scant literature critically evaluating TKDL as a tool for the protection of TK. This paper attempts to highlight some of the defects and inadequacies pervading TKDL, which inhibits its characterisation as a “silver bullet” in the war against biopiracy. Though laudatory, TKDL with its …
Tc Heartland Llc V. Kraft Foods Group Brands And The Big Debate About East Texas: How A Delaware Case Leaves Patent Venue Unsettled And Presages As Applied Challenges To The Constitutionality Of Narrow Venue Interpretations, 17 J. Marshall Rev. Intell. Prop. L. 232 (2017), Jesse Snyder
UIC Review of Intellectual Property Law
Lack of sanguinity for patent holders was manifest after the Supreme Court’s May 22, 2017, opinion in TC Heartland LLC v. Kraft Foods Group Brands LLC. Yet whether TC Heartland—a case from the U.S. District Court for the District of Delaware—represents a fait accompli against forum shopping remains debatable. Writing for the Court in a unanimous opinion, Justice Clarence Thomas rejected the U.S. Court of Appeals for the Federal Circuit’s interpretation that an intervening amendment to the general venue statute broadened the scope of venue for patent cases. The patent venue statute, 28 U.S.C. § 1400(b), provides that “[a]ny civil …
Avoiding The Chaos Of Maryjane - A Conventional Approach To Intellectual Property Protection Of Marijuana, 17 J. Marshall Rev. Intell. Prop. L. 278 (2017), Kaylee Willis
UIC Review of Intellectual Property Law
Whether you are considering the ever-popular recreational use, or recent medicinal developments, marijuana is a highly discussed controversial substance. With revenue from marijuana into the billions of dollars, it is no wonder it has been trying to reach into the intellectual property arena. This comment specifically looks into the patent arena and the obstacles that come with an attempt to seek, and enforce protection of marijuana-based patent applications. With the USPTO’s plant and utility patent options, there is perhaps more than one way to pass marijuana-based substances as patent-eligible subject matter. The largest obstacle for this type of intellectual property …
The Depiction Of Trademarked Landmarks In Fictional Films: Protecting Filmmakers From Infringement And Dilution Liability, 15 J. Marshall Rev. Intell. Prop. L. 676 (2016), Joel Timmer
UIC Review of Intellectual Property Law
Many well-known landmarks, like the Empire State Building, are protected as trademarks. This trademark status may be used by trademark holders to attempt to control or limit the depictions of those landmarks in artistic works like feature films. Using the trademarked Hollywood Sign as an example, this article examines the status of landmarks as trademarks as well as the protections trademark holders have over unauthorized depictions of trademarked landmarks through actions for trademark infringement or trademark dilution. Concluding that trademark dilution is more likely the proper cause of action for the unauthorized depiction of trademarks in films, this article then …
The Emergence Of The Innovative Entity: Is The Patent System Left Behind?, 16 J. Marshall Rev. Intell. Prop. L. 66 (2016), Talya Ponchek
The Emergence Of The Innovative Entity: Is The Patent System Left Behind?, 16 J. Marshall Rev. Intell. Prop. L. 66 (2016), Talya Ponchek
UIC Review of Intellectual Property Law
This article is concerned with the question of whether the United States patent system achieves its goal, set by policymakers, to promote innovation. The article provides a systematic review of two bodies of literature and how each of them perceives the process and identity of the innovator. First, a review of the development of U.S. patent system, from pre-legislation England to the U.S. federal system, alongside the developments of the classical reasoning for property rights allocation, revealing that as the Anglo-American patent system is rooted in the privileges system, it views innovation as the creation of an individual inventor. Second, …
Blurring The Line: An Examination Of Technological Fact-Finding In Music Copyright Law, 16 J. Marshall Rev. Intell. Prop. L. 115 (2016), Jeremy Aregood
Blurring The Line: An Examination Of Technological Fact-Finding In Music Copyright Law, 16 J. Marshall Rev. Intell. Prop. L. 115 (2016), Jeremy Aregood
UIC Review of Intellectual Property Law
The result of Williams v. Bridgeport Music, Inc. highlights a major issue in musical plagiarism factfinding. Different circuits employ different tests for fact-finding, however all the tests involve some form of objective criteria that is guided by expert witnesses who perform musical analyses. Because expert witnesses influence their analysis with their own subjective interpretations of the music, and because juries are not fully aware of the distinction between objective and subjective analysis, juries have a distinct possibility of returning a verdict that contradicts the evidence and public policy. New advancements in technology and computation may assist courts in evaluating the …
Protecting Trade Secrets Under International Investment Law: What Secrets Investors Should Not Tell States, 15 J. Marshall Rev. Intell. Prop. L. 228 (2016), Daria Kim
UIC Review of Intellectual Property Law
The article addresses specifics of trade secret protection under international investment law. As a particular example, it analyzes protection of pharmaceutical regulatory data against the background of the growing public policy campaign for broader access to clinical trial data and the recent unprecedented practice of the European Medicines Agency of disclosing clinical dossiers submitted for drug marketing approval. Given the significant role of foreign direct investment in the global pharmaceutical industry and substantial, exponentially increasing costs incurred by drug originator companies in conducting clinical trials, the prospect of investor-state dispute over data disclosure does not appear purely hypothetical. The question …
Student-Athletes Put Full-Court Pressure On The Ncaa For Their Rights, 15 J. Marshall Rev. Intell. Prop. L. 276 (2016), Taylor Riskin
Student-Athletes Put Full-Court Pressure On The Ncaa For Their Rights, 15 J. Marshall Rev. Intell. Prop. L. 276 (2016), Taylor Riskin
UIC Review of Intellectual Property Law
The struggle between the NCAA and student-athletes is one that will not slow down. The issue is whether the mandatory student-athlete agreement is reasonable and, further, if student-athletes should be compensated for the use of their likeness? The answers to these questions are crucial with over a century of tradition on the line. This comment analyzes the recent Ninth Circuit decision through an antitrust and right of publicity lens. Additionally, this comment proposes a solution that allows student-athletes to receive some type of compensation while the NCAA preserves amateurism.
From Tragedy To Triumph In The Pursuit Of Looted Art: Altmann, Benningson, Portrait Of Wally, Von Saher And Their Progeny, 15 J. Marshall Rev. Intell. Prop. L. 394 (2016), Donald Burris
UIC Review of Intellectual Property Law
This article is a broad and approachable overview of American law regarding the potential repatriation of Nazi-looted art—an area which the author and his now-retired partner, Randy Schoenberg, helped develop from the ground up starting with the development of the Altmann case, decided by the U.S. Supreme Court in 2004, and continuing on through a number of fascinating looted-art cases of a more recent vintage. Parts of the article read as much like a detective story as a summary of cases and Mr. Burris has been kind enough to share both his approach to these cases and his prognosis for …
Cultural Heritage & New Media: A Future For The Past, 15 J. Marshall Rev. Intell. Prop. L. 604 (2016), Ann Marie Sullivan
Cultural Heritage & New Media: A Future For The Past, 15 J. Marshall Rev. Intell. Prop. L. 604 (2016), Ann Marie Sullivan
UIC Review of Intellectual Property Law
The application of new media to cultural heritage is consistent with the policy objectives that the copyright law of the United States stands to promote. However, the practical application of the law currently hinders these objectives, often stifling the creation and dissemination of new media works of cultural heritage. In this context, copyright law presents a problem and not a solution, a barrier and not a protection, dissuasion of creation and not encouragement and incentive. Defining the legal scope and reach of digital property and new media within the realm of art and cultural heritage law is critical for the …