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Articles 301 - 330 of 550
Full-Text Articles in Intellectual Property Law
In His Own Words: The Career Of Chief Judge Paul Michel, 10 J. Marshall Rev. Intell. Prop. L. 301 (2011), Gene Quinn
In His Own Words: The Career Of Chief Judge Paul Michel, 10 J. Marshall Rev. Intell. Prop. L. 301 (2011), Gene Quinn
UIC Review of Intellectual Property Law
No abstract provided.
Ip Legal Ethics In The Everyday Practice Of Law: An Empirical Perspective On Patent Litigators, 10 J. Marshall Rev. Intell. Prop. L. 309 (2011), William T. Gallagher
Ip Legal Ethics In The Everyday Practice Of Law: An Empirical Perspective On Patent Litigators, 10 J. Marshall Rev. Intell. Prop. L. 309 (2011), William T. Gallagher
UIC Review of Intellectual Property Law
This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and …
Ethical Issues In U.S. Trademark Prosecution And Ttab Practice, 10 J. Marshall Rev. Intell. Prop. L. 365 (2011), Linda K. Mcleod, Stephanie H. Bald
Ethical Issues In U.S. Trademark Prosecution And Ttab Practice, 10 J. Marshall Rev. Intell. Prop. L. 365 (2011), Linda K. Mcleod, Stephanie H. Bald
UIC Review of Intellectual Property Law
The conduct of practitioners and agents before the U.S. Patent and Trademark Office (“USPTO” or “Office”) is subject to regulation by the Office under 35 U.S.C. § 2(b)(2)(D). This provision grants the Under Secretary of Commerce for Intellectual Property and the Director of the USPTO the authority to establish regulations to govern the conduct of agents, attorneys, or other representatives before the Office, including establishing disciplinary measures for non-compliance with those regulations. The USPTO regulations governing conduct include the Patent and Trademark Office Code of Professional Responsibility. This article summarizes the key canons and disciplinary rules applicable to trademark practitioners …
International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu
International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu
UIC Review of Intellectual Property Law
This paper discusses the concept of using international arbitration as a method of resolving patent disputes. First, this paper examines the arbitrability of patent validity disputes from a public policy viewpoint. The question is whether, or to what extent, the subject matter of patent validity disputes may be settled by international commercial arbitration. Second, this paper provides suggestions on strategies for organizational decision-makers to consider whether it is proper to choose arbitration as a more favorable tool when confronted with a patent dispute. Finally, this paper discusses how to choose the seat of arbitral institution and the applicable law.
Acceptable Fraud? How Falsities And Misstatements Can Escape The Scope Of The New Fraud Standard, 10 J. Marshall Rev. Intell. Prop. L. 410 (2011), Jacobi M. Fields
Acceptable Fraud? How Falsities And Misstatements Can Escape The Scope Of The New Fraud Standard, 10 J. Marshall Rev. Intell. Prop. L. 410 (2011), Jacobi M. Fields
UIC Review of Intellectual Property Law
Accuracy is crucial to the trademark registration process. Registrants are required to submit truthful applications to the United States Patent and Trademark Office (“PTO”) or face fraud liability. Pursuant to the Lanham Act, fraud liability is initiated by the submission of “false or fraudulent” statements in a trademark application. This language presents a critical problem for registrants because the terms false and fraudulent are not synonymous, and it is unclear what actually triggers fraud liability. As a result, the requirements for fraud liability and the corresponding standards for fraud have been in fluctuation over the past ten years. In 2009, …
Patent Office As Biosecurity Gatekeeper: Fostering Responsible Science And Building Public Trust In Diy Science, 10 J. Marshall Rev. Intell. Prop. L. 423 (2011), Brian J. Gorman
UIC Review of Intellectual Property Law
When the fields of intellectual property law and biotechnology intersect, most analysis is driven byeconomic and ethical issues. This article examines these factors, but in relation to the emerging security threat posed by biohackers, or do-it-yourself (“DIY”) scientists, who operate free from oversight and industry norms at the fringes of the biotechnology community. Public health risks are poised to grow as these citizen-scientists race for lucrative discoveries in the new frontier of syntheticbiology. This article proposes that the existing paradigm adjust accordingly to leverage regulatory compliance from the most ambitious biohackers looking to benefit from patent protection. The U.S. government …
Do You Mind My Smoking? Plain Packaging Of Cigarettes Under The Trips Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011), Alberto Alemanno, Enrico Bonadio
Do You Mind My Smoking? Plain Packaging Of Cigarettes Under The Trips Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011), Alberto Alemanno, Enrico Bonadio
UIC Review of Intellectual Property Law
Plain packaging, a new tobacco control tool that a growing number of countries are considering, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the use of the brand name, displayed in a standard font, size, colour and location on the package. In opposing this new strategy, the tobacco industry is particularly keen on emphasizing the uselessness of plain packaging in reducing smoking rates and its incompatibility with trade mark provisions of international treaties. In particular, the tobacco industry and …
The Application Of Data Access Policies Designed For Genome-Wide Association Studies To Smaller Scale Databases, 10 J. Marshall Rev. Intell. Prop. L. 476 (2011), Donna M. Gitter
UIC Review of Intellectual Property Law
Scientific progress thrives with open discussion of new ideas and supporting data. To this end, researchers traditionally publish their results in scientific papers—papers that contain the new ideas and the underlying data supporting those ideas. With the advent of large-scale and high-throughput data analysis, however, the creation of scientific databases have replaced the traditional model. For such publically-funded, data-intensive projects, funding agencies typically require that all relevant data be made available on a publicly accessible website at the time of the paper’s publication. Against the backdrop of the public accessibility model used in the 1000 Genomes Project, the author recommends …
Interpreting Myriad: Acquiring Patent Law's Meaning Through Contemporary Jurisprudence And Humanistic Viewpoint Of Common Heritage Of Dna, 10 J. Marshall Rev. Intell. Prop. L. 508 (2011), Saby Ghoshray
UIC Review of Intellectual Property Law
Until Judge Sweet’s decision in Association for Molecular Pathology v. U.S. Patent & Trademark Office (Myriad), gene patentability in the United States has evaded prohibition for more than three decades since Diamond v. Chakrabarty. The Myriad decision has captured the imagination of the legal community—but not in isolation. This article examines Myriad through the lens of two contemporary European decisions related to gene patenting, Eli Lilly & Co. v Human Genome Sciences, Inc and Monsanto Technology LLC v. Cefetra BV, suggesting that Myriad is a narrative that evolves at the intersection of law’s aspiration, humanity’s common heritage, and corporate realities …
Biotech Patent Infringement In Europe: The "Functionality" Gatekeeper, 10 J. Marshall Rev. Intell. Prop. L. 540 (2011), Vid Mohan-Ram, Richard Peet, Philippe Vlaemminck
Biotech Patent Infringement In Europe: The "Functionality" Gatekeeper, 10 J. Marshall Rev. Intell. Prop. L. 540 (2011), Vid Mohan-Ram, Richard Peet, Philippe Vlaemminck
UIC Review of Intellectual Property Law
The Court of Justice of the European Union recently concluded in Monsanto Technology LLC v. Cefetra BV that a patent with claims drawn to isolated DNA, or transgenic products containing that sequence, cannot be infringed if the DNA is not functional at the time of the alleged infringement.This paper discusses how the Cefetra judgment may unintentionally inflict serious economic harm on the European biotechnology industry because countless biotechnology products may no longer be protected by what are otherwise valid and enforceable patent claims. After Cefetra, an accused infringer may deny infringement by simply asserting that the patented sequence does not …
Trademark Protection Of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011), Lee B. Burgunder
Trademark Protection Of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011), Lee B. Burgunder
UIC Review of Intellectual Property Law
The Wall Street Journal recently reported that the owner of a Swedish restaurant was suing other businesses for violating its registered trademark, which surprisingly consists of live goats on a grass roof. The PTO and the courts have steadily enlarged the set of trade dress features that might serve as trademarks, and there is no reason, in theory, to treat live animals differently. Nevertheless, the PTO likely made a mistake in this instance when it agreed to register the mark. This article evaluates the requirements for protecting trade dress with trademarks, and explains why a Swedish restaurant should not have …
Recognition And Presentation Of A “New Result” To Reach A Safe Harbor, 10 J. Marshall Rev. Intell. Prop. L. 583 (2011), Hal Milton
UIC Review of Intellectual Property Law
A safe harbor where a patent has the best chance of survival in a litigation storm is only established by dividing the preparation of a patent application into two separate categories: the recognition of the new result and the presentation of the new result throughout the patent application. The two famous cases of Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp. and Graham v. John Deere Co. illustrate how the implementation of recognition and presentation might have prevented litigation or saved the patents.
Notice That Registered Trademark In The Window?, 10 J. Marshall Rev. Intell. Prop. L. 736 (2011), James Juo
Notice That Registered Trademark In The Window?, 10 J. Marshall Rev. Intell. Prop. L. 736 (2011), James Juo
UIC Review of Intellectual Property Law
The letter R enclosed in a circle (i.e., the “®” symbol) is a well-known form of statutory notice for a trademark registered with the United States Patent and Trademark Office. This helps ensure that the public will identify a mark as a source identifier rather than as a generic term for a product or service. Although not mandatory, failure to display the registration symbol or another form of statutory notice with a registered trademark may limit the monetary remedies recoverable in a lawsuit for infringement of that registered mark under the Lanham Act. Absent statutory notice, damages for infringements and …
University Initiation Of Patent Infringement Litigation, 10 J. Marshall Rev. Intell. Prop. L. 623 (2011), Jacob H. Rooksby
University Initiation Of Patent Infringement Litigation, 10 J. Marshall Rev. Intell. Prop. L. 623 (2011), Jacob H. Rooksby
UIC Review of Intellectual Property Law
While the literature examining university engagement in patenting and technology transfer is quite developed, commentators largely have overlooked university involvement in patent litigation. This article focuses on one aspect of that involvement—initiation of patent infringement litigation—by providing a quantitative and textual analysis of patent infringement actions initiated by universities from 2009 through 2010. Suing for-profit actors for money may seem antithetical to the mission of not-for-profit universities, but in fact universities filed over fifty such cases in the studied time period. Examination of these cases reveals a remarkable similarity between the litigation behavior of universities and for-profit actors, as well …
You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee
You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee
UIC Review of Intellectual Property Law
Many recording artists and songwriters never reap the rewards of their work. America’s first professional songwriter died in poverty at the age of thirty-seven. At the Congressional level the situation has described recording artists as “one group of creators who get ripped off more than anybody else in any other industry”. As we approach 2013, there will be a new line of cases that deal with authors of sound recordings attempting to terminate their copyright assignment to the record companies. While the most efficient and frugal solution would be legislative action, the most probable outcome is expensive, fact-intensive litigation. Congress …
The Utilitarian Fruits Approach To Justifying Patentable Subject Matter, 10 J. Marshall Rev. Intell. Prop. L. 753 (2011), Emir Aly Crowne
The Utilitarian Fruits Approach To Justifying Patentable Subject Matter, 10 J. Marshall Rev. Intell. Prop. L. 753 (2011), Emir Aly Crowne
UIC Review of Intellectual Property Law
This article proposes an approach to justifying patentable subject matter that uses Locke as its starting point, and utilitarianism as its end. The patent eligibility of any given subject matter must be a mixture of labour and certain utilitarian incentives. If these elements are present—and if the subject matter in question can be made to fit within the definition of invention (even if slightly uncomfortably)—then courts and tribunals should aim to accommodate it.
Twitter's Trademark Problems: Is The Anticybersquatting Consumer Protection Act Outdated?, 10 J. Marshall Rev. Intell. Prop. L. 764 (2011), Cole C. Hardy
UIC Review of Intellectual Property Law
Under the Lanham Act there is no remedy for individuals when imposters register user names with corresponding post-domain paths containing protected trademarks on social network websites. While Twitter temporarily experimented with its own verification process, it currently does not help users of its site distinguish trademark owners’ pages from the imposters’ pages. Current law discouraging such activity only applies to domain names. This article proposes that with a minor change to the ACPA, the Lanham Act could be updated to help trademark owners protect their rights when infringing activity is experienced with social networking handles and the corresponding post-domain paths.
Patent Law, Hippo, And The Biodiversity Crisis, 9 J. Marshall Rev. Intell. Prop. L. 624 (2010), Andrew W. Torrance
Patent Law, Hippo, And The Biodiversity Crisis, 9 J. Marshall Rev. Intell. Prop. L. 624 (2010), Andrew W. Torrance
UIC Review of Intellectual Property Law
Planet earth is host to a dazzling variety of living organisms. This diversity of life, or “biodiversity,” is vital to the survival and prosperity of humanity, supplying such vital amenities as food, clothing, shelter, natural biochemicals useful in medicine, industry, and agriculture, and even irreplaceable ecosystem services, such as clean air and water. Despite the prodigious amount of biodiversity on earth, human activities have been depleting it at an accelerating rate that has now reached the level of a mass extinction event. The five greatest threats to biodiversity can be summarized by the “HIPPO” acronym: (1) Habitat loss, (2) Invasives, …
Gene Patenting Debate: The Meaning Of Myriad, 9 J. Marshall Rev. Intell. Prop. L. 953 (2010), Miri Yoon
Gene Patenting Debate: The Meaning Of Myriad, 9 J. Marshall Rev. Intell. Prop. L. 953 (2010), Miri Yoon
UIC Review of Intellectual Property Law
The United States District Court for the Southern District of New York recently held in Association for Molecular Pathology v. United States Patent & Trademark Office that Myriad’s patent claims directed to isolated DNA molecules encoding human breast cancer susceptibility genes BRCA1/2 are not patent-eligible subject matter. Even though the court construed that the patent claims are directed to tangible chemical compounds, the overriding importance of unclaimed DNA sequence information renders claimed molecules as unpatentable products of nature. While the immediate impact of this decision is limited to Myriad’s patents-in-suit, this decision reflects the concern about the adverse effects of …
American Exceptionalism, The French Exception, Intellectual Property Law, And Peer-To-Peer File Sharing On The Internet, 10 J. Marshall Rev. Intell. Prop. L. 95 (2010), Lyombe Eko
UIC Review of Intellectual Property Law
A fundamental problem confronting policy makers is how to apply intellectual property rules and regulations developed for tangible intellectual property assets in real space to intangible,dematerialized intellectual property in cyberspace. The United States and France are self-described exceptionalist countries. American exceptionalism refers to the historical tendency of the United States to emphasize its unique status as the beacon of liberty, while l’exception française (the French exception) refers to the French ideological posture that emphasizes the specificity and superiority of French culture. American exceptionalism and l’exception française are functionally equivalent theoretical constructs that describe and explain how the United States and …
Not Only Innovation But Also Collaboration, Funding, Goodwill And Commitment: Which Role For Patent Laws In Post-Copenhagen Climate Change Action, 9 J. Marshall Rev. Intell. Prop. L. 657 (2010), Estelle Derclaye
UIC Review of Intellectual Property Law
Patent laws can do their bit to help reduce our greenhouse gas emissions. In 2009, accelerated grant procedures and reduction of fees have been put in place by among others the UK and US patent offices. Private initiatives such as the eco-patent commons to licence technology free of charge have been taken. But greening patent law is only a small part of the solution. However well-intentioned all these initiatives are, for several reasons, they may not be sufficient or even at all used. More than intellectual property-related solutions, what will be needed is non- intellectual property-related solutions such as using …
Consumer Protection In The Eco-Mark Era: A Preliminary Survey And Assessment Of Anti-Greenwashing Activity And Eco-Mark Enforcement, 9 J. Marshall Rev. Intell. Prop. L. 742 (2010), Eric L. Lane
UIC Review of Intellectual Property Law
We stand at the dawn of the Eco-mark Era—a period in which green branding, advertising environmentally friendly products and services, and touting sustainable business practices will be pervasive and profitable. However, with the rise of green branding comes the temptation of greenwashing—making false or misleading claims regarding environmentally friendly products, services or practices. Instances of greenwashing appear to be on the rise, but we are seeing more activity to combat greenwashing by public enforcement and consumer class actions. In addition, green brand owners are protecting and enforcing their eco-marks, and trademark litigation involving green brands is becoming commonplace. How is …
The Eminence Of Imminence And The Myopia Of Markets, 9 J. Marshall Rev. Intell. Prop. L. 674 (2010), Teneille R. Brown
The Eminence Of Imminence And The Myopia Of Markets, 9 J. Marshall Rev. Intell. Prop. L. 674 (2010), Teneille R. Brown
UIC Review of Intellectual Property Law
This article questions the privileging of disaster, or imminent threat, over more distant threats to public health. In many cases, this privileging makes sense as we do not have time to evaluate the threat under traditional frameworks. But in some cases, we privilege disaster in ways that may be ethically and legally unsound. Here, I am interested in a particular type of public health threat—the negative consequences that stem from climate change. In this article, I view the climate change discussion through the lens of distributive justice. I analyze the ethical as well as legal arguments in support of encouraging …
What Does It Mean To Be Green: A Short Analysis Of Emerging Ip Issues In "Green" Marketing, 9 J. Marshall Rev. Intell. Prop. L. 774 (2010), Maureen Beacom Gorman
What Does It Mean To Be Green: A Short Analysis Of Emerging Ip Issues In "Green" Marketing, 9 J. Marshall Rev. Intell. Prop. L. 774 (2010), Maureen Beacom Gorman
UIC Review of Intellectual Property Law
Green products are red hot, but defining what “green” means is difficult. Consumers are faced with an array of labels denoting products as “green,” making it difficult to determine which are truly “green” and which are “green-washed.” The Trademark Trial and Appeal Board recently determined that the term “green” is generic, meaning anything “environmentally friendly.” The FTC has been criticized for causing consumer confusion over its failure to enforce its “Green Guides” governing environmental product claims and certifications. These “Green Guides,” which do not define “green,” were first promulgated by the FTC in 1992, but have not been updated since …
The 8% Solution - Or How Good Are The Calculation Economics By The Federal Circuit In Lucent V. Microsoft?, 9 J. Marshall Rev. Intell. Prop. L. 797 (2010), W. Lesser
UIC Review of Intellectual Property Law
Lucent v. Microsoft brought to the fore again the complexity of infringement damage estimates. Differences in approaches were laid open in this case with the trial court jury settling $358 million in damages against Microsoft and the appeals court striking down the value as lacking substantial evidence. Damages were established on the “reasonable royalty” basis for a product which was neither licensed nor sold. This article contends that the appeals court took too narrow a view of economics in its analysis of the software sector. Specifically, the court seems to have applied a “perfect competition” model to a sector which …
Music Markets And Mythologies, 9 J. Marshall Rev. Intell. Prop. L. 831 (2010), Henry H. Perritt, Jr.
Music Markets And Mythologies, 9 J. Marshall Rev. Intell. Prop. L. 831 (2010), Henry H. Perritt, Jr.
UIC Review of Intellectual Property Law
New technologies have started a revolution in the music marketplace. As new business models emerge, major firms in the popular music industry have mounted a campaign on the premise that the world of popular music faces a grave threat from illicit filing sharing. This article makes the case against that campaign. It discusses how new technologies are currently reshaping the marketplace to allow a wider range of new artists, as well as more direct access between musicians and their fans. It also predicts how future demand for popular music will increase due to portability, and ultimately recommends directions for marketplace …
Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins
Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins
UIC Review of Intellectual Property Law
Historically, quilts have been denied the same copyright protection available to any other expression in a fixed medium. When quilts have been considered protectable, the protectable elements in a pattern have been limited, or the application of the substantial similarity test has varied widely. One possible explanation for this unequal treatment is that quilting is viewed as ‘women’s work.’ Another is that quilts are primarily functional. However, quilts have evolved over time and may now be expensive collectible pieces of art; art that deserves copyright protection. This article traces the history of quilt making, addresses the varying standards of protection …
Reforming The Uspto To Comply With Mpep § 707.07(J) To Give A Fair Shake To Pro Se Inventor-Applicants, 9 J. Marshall Rev. Intell. Prop. L. 880 (2010), Paul M. Swamidass
Reforming The Uspto To Comply With Mpep § 707.07(J) To Give A Fair Shake To Pro Se Inventor-Applicants, 9 J. Marshall Rev. Intell. Prop. L. 880 (2010), Paul M. Swamidass
UIC Review of Intellectual Property Law
If pro se patent applicants are successful with their applications, they are likely to be inspired to become serial inventors and patentees. In contrast, a pro-se patent applicant, who is turned off by a non- transparent and arbitrary examination process at the United States Patent and Trademark Office (“USPTO”), may curtail his/her instinct to invent and patent. The USPTO does not collect data or publish statistical analyses of pro se patent applications. Therefore, the challenges faced by the pro se inventor- applicants are hidden. The author subjected himself to the PTO’s patent examination process as a pro se applicant for …
The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley
The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley
UIC Review of Intellectual Property Law
Throughout history, criminal organizations have produced, packaged, transported, marketed, and sold illegal products. These organizations and their individual members can be punished for all of the steps in this process, except one: marketing. These groups routinely market their products with trademarks affixed to the illegal products they sell, and benefit from these trademarks the same way a company like the Coca-Cola Company benefits from its trademarks. Criminal organizations should not be free to use trademarks without fear of any additional punishment for doing so. Congress and the United States Sentencing Commission should look at this issue to determine an appropriate …
No More Rockin' In The Free World: Removing The Radio Broadcast Exemption, 9 J. Marshall Rev. Intell. Prop. L. 935 (2010), Brandon H. Nemec
No More Rockin' In The Free World: Removing The Radio Broadcast Exemption, 9 J. Marshall Rev. Intell. Prop. L. 935 (2010), Brandon H. Nemec
UIC Review of Intellectual Property Law
In an era of boundless technological advancement, the music industry faces its most turbulent economic landscape to date. The sustainability of the industry relies on the emergence of an innovative strategy to adapt music’s business model and continue to incentivize the creation and performance of brilliant music. A modernized industry model necessitates a reorganization of the copyright protections ultimately designed to motivate exceptional musicians. The following comment proposes a shift in one of music’s traditional revenue streams, and examines the controversial public performance exemption provided to broadcast radio. While debate has circulated around the public performance exemption for decades, the …