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Articles 361 - 390 of 550
Full-Text Articles in Intellectual Property Law
Northern District Of Illinois Adopts Local Patent Rules, 9 J. Marshall Rev. Intell. Prop. L. 202 (2009), Edward D. Manzo, Matthew F. Kennelly
Northern District Of Illinois Adopts Local Patent Rules, 9 J. Marshall Rev. Intell. Prop. L. 202 (2009), Edward D. Manzo, Matthew F. Kennelly
UIC Review of Intellectual Property Law
The Northern District of Illinois took a proactive step in addressing procedural issues that commonly arise in patent litigation by enacting the Court’s Local Patent Rules. These Rules provide a uniform structure to pretrial procedures in patent cases involving claims of infringement, non-infringement, invalidity, or unenforceability of utility patents. The Rules will enable greater predictability and planning for the Court, counsel, and clients by requiring parties to indentify and focus upon outcome determinative or otherwise significant disputes. This article offers insight on the Rules from two members of the committee of district court judges and experienced lawyers that initially drafted …
Preferred Embodiments In Patents, 9 J. Marshall Rev. Intell. Prop. L. 398 (2009), Tom Brody
Preferred Embodiments In Patents, 9 J. Marshall Rev. Intell. Prop. L. 398 (2009), Tom Brody
UIC Review of Intellectual Property Law
It is a tradition in patent drafting to refer to one or more examples as “preferred” or as a “preferred embodiment.” While these “preferred embodiments” reside in the specification, they can influence the interpretation of the claims. The role of preferred embodiments in claim construction was the issue in two cases, Laitram Corp. v. Cambridge Wire Cloth Co. and Vitronics Corp. v. Conceptronic, Inc. These cases represent two different lineages of the case law that refer to preferred embodiments, where application of these cases broadens (or prevents narrowing of) claim scope. Laitram warns against confining the claim to a specific …
Social Networking And Blogging: The New Legal Frontier, 9 J. Marshall Rev. Intell. Prop. L. 500 (2009), Robert Newman, Liisa Thomas
Social Networking And Blogging: The New Legal Frontier, 9 J. Marshall Rev. Intell. Prop. L. 500 (2009), Robert Newman, Liisa Thomas
UIC Review of Intellectual Property Law
Improvements in communication technology have effectively made the world a smaller place. As businesses attempt to exploit these new technological improvements to better communicate their messages to their clients, these same improvements continue to raise new and difficult legal issues related to fair trade practices, privacy, and freedom of speech. This article identifies current legal developments related to advertising in the online world and analyzes the actions taken to resolve these new and difficult legal issues within the framework of United States federal and state law and private industry-specific self-governance.
The Long And Winding Road To The Google Books Settlement, 9 J. Marshall Rev. Intell. Prop. L. 227 (2009), Jonathan Band
The Long And Winding Road To The Google Books Settlement, 9 J. Marshall Rev. Intell. Prop. L. 227 (2009), Jonathan Band
UIC Review of Intellectual Property Law
In its Library Project, Google is scanning millions of books from the world’s leading research libraries to include in a searchable database. This scanning has occurred without the copyright owners’ authorization, leading to the class action copyright infringement lawsuit, Authors Guild v. Google, Inc. The central legal issue in the litigation is whether copyright law’s fair use doctrine provides Google with a defense against the authors’ claims. Ultimately, the parties reached a settlement. The proposed Settlement Agreement is an extremely complex document which, if approved by the court, will govern the future of the Google Library Project. It creates a …
The Author’S Rights In Literary And Artistic Works, 9 J. Marshall Rev. Intell. Prop. L. 453 (2009), Alina Ng
The Author’S Rights In Literary And Artistic Works, 9 J. Marshall Rev. Intell. Prop. L. 453 (2009), Alina Ng
UIC Review of Intellectual Property Law
Authorship and creativity are products of authentic human expression that the law must encourage in order for works to be produced. The commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand. Focus on popular demand may, however, result in works that lack social, educational and cultural value or utility. Natural law philosophy suggests that the copyright system should be an ethical and moral institution that would, in turn, promote the progress of society through authentic authorship. While economic incentives offer authors market rewards that may facilitate the creation and dissemination, economic …
Declaratory Judgment Jurisdiction In Patent Disputes: A Rock And A Hard Place, 9 J. Marshall Rev. Intell. Prop. L. 583 (2009), Jonathan S. Pope
Declaratory Judgment Jurisdiction In Patent Disputes: A Rock And A Hard Place, 9 J. Marshall Rev. Intell. Prop. L. 583 (2009), Jonathan S. Pope
UIC Review of Intellectual Property Law
In 2007, the United States Supreme Court invalidated the Federal Circuit’s test for declaratory judgment jurisdiction explaining that the law requires an “all circumstances” approach and that the “reasonable apprehension of suit” test is not sufficient. The Federal Circuit’s subsequent applications of the “all circumstances” test show that a potential infringer is likely to sustain jurisdiction where the potential infringer and the patentee have merely communicated their adverse positions to one another. On the other hand, the Federal Circuit is not likely to find jurisdiction where the patent-holder has not communicated, or has vaguely communicated, its position to the potential …
Couture Copyright: Copyright Protection Fitting For Fashion Design, 9 J. Marshall Rev. Intell. Prop. L. 602 (2009), Aleksandra Spevacek
Couture Copyright: Copyright Protection Fitting For Fashion Design, 9 J. Marshall Rev. Intell. Prop. L. 602 (2009), Aleksandra Spevacek
UIC Review of Intellectual Property Law
The fashion industry does not need special, protective legislation. Laws are already in place that can serve to aid in the protection of fashion design. Legislation has extended copyright protection to architectural plans and their associated structures. This extension was based on rationale that is applicable, without revision, to fashion design. The practice of denying protection to fashion design is unsupported by law. In fact, courts already have the means to grant protection to fashion design. First, the court can grant protection through analogy to architectural works. Second, the court can clarify the separability test for utilitarian designs—a test which …
Defusing The “Atomic Bomb” Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckesson Et Al., 9 J. Marshall Rev. Intell. Prop. L. 330 (2009), Sean M. O’Connor
UIC Review of Intellectual Property Law
The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office’s Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then. This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of materiality and …
“Pay-For-Delay” Settlements In Pharmaceutical Litigation: Drawing A Fine Line Between Patent Zone And Antitrust Zone, 9 J. Marshall Rev. Intell. Prop. L. 528 (2009), Yuki Onoe
UIC Review of Intellectual Property Law
Congress has identified the recent trend of pharmaceutical companies to settle patent litigation under “pay-for-delay” settlements or reverse payment settlements. Under these agreements, a generic maker receives a payment from a brand-name company in exchange for withdrawing the patent challenge and refraining from entering the market until an agreed date. Most courts have rejected antitrust challenges to this practice in view of exclusive rights of patent holders and general benefits from settlements. As part of the health care reform, Congress now proposes to treat “pay-for-delay” settlements as per se illegal and entirely ban the practice. The proposal, however, limits the …
Trademark Use As Keywords: A Comparative Look At Trademark Use As Keywords In Paid Search And Digital Public Performance Rights For Sound Recordings, 9 J. Marshall Rev. Intell. Prop. L. 553 (2009), Katie Pimentel
UIC Review of Intellectual Property Law
A vigorous debate has emerged regarding the expansion of trademark owners’ rights to have exclusive control over their marks in the paid search environment. A common practice in paid search is for advertisers to purchase other companies’ trademarks as keywords for search engine results. Comparing the similarities between the current struggles concerning trademark use as paid search keywords to the evolution of the right to a digital public performance for sound recording owners, this comment proposes a model that allows purchasers of other entities’ trademarks to use those marks in a Congressionally regulated fashion in a similar way section 114 …
Rediscovering The Doctrine Of Marking Estoppel After Medimmune: Balancing The Public Interest And Private Rights, 7 J. Marshall Rev. Intell. Prop. L. 573 (2008), Michael D. Karson
Rediscovering The Doctrine Of Marking Estoppel After Medimmune: Balancing The Public Interest And Private Rights, 7 J. Marshall Rev. Intell. Prop. L. 573 (2008), Michael D. Karson
UIC Review of Intellectual Property Law
Marking is the act of placing a patent number on a product or its packaging. The doctrine of marking estoppel deals with whether the act of marking will preclude denials of patent infringement or patent validity challenges. This comment reviews the history of marking estoppel and determines that although the Federal Circuit has expressed reservations about the doctrine, marking estoppel remains viable. This comment argues that marking estoppel should preclude a marking party from denying patent infringement when the marking party has acted with scienter and the asserting party has come to court with clean hands. However, because of the …
State Sovereign Immunity: States Use The Federal Patent Law System As Both A Shield And A Sword, 8 J. Marshall Rev. Intell. Prop. L. 134 (2008), Nicholas Dernik
State Sovereign Immunity: States Use The Federal Patent Law System As Both A Shield And A Sword, 8 J. Marshall Rev. Intell. Prop. L. 134 (2008), Nicholas Dernik
UIC Review of Intellectual Property Law
A number of states currently rely on Eleventh Amendment immunity to defend against infringement actions by the patentees during research and development of new technologies. Some of these states then evoke the federal patent system to exclude private parties from infringing state patented subject matter. Ultimately, states enjoy all of the benefits of the federal patent system but states are not limited by any of its restrictions. This comment proposes a remedy to the states’ unfair tactical advantage of using the federal patent system as both a shield and a sword.
Justice Breyer's Bicycle And The Ignored Elephant Of Patent Exhaustion: An Avoidable Collision In Quanta V. Lge, 7 J. Marshall Rev. Intell. Prop. L. 245 (2008), John W. Osborne
UIC Review of Intellectual Property Law
The Supreme Court held in United States v. Univis Lens Co. that the authorized disposition of an article embodying the essential features of a patent claim exhausts that claim. The Federal Circuit’s LGE v. Bizcom decision, currently under review by the Supreme Court in Quanta v. LGE, improperly held that patent exhaustion could be disclaimed by contract. Patent exhaustion is a limitation on statutory rights which cannot be expanded by contract. Moreover, Quanta v. LGE is governed by the contributory infringement statute. Contributory infringement and exhaustion are opposite ends of the same principle in the Quanta v. LGE factual scenario. …
Duty To Disclose: Dayco Products V. Total Containment, 7 J. Marshall Rev. Intell. Prop. L. 325 (2008), Tom Brody
UIC Review of Intellectual Property Law
The duty to disclose, as set forth by 37 C.F.R. § 1.56 and case law from the Federal Circuit, should be followed during the prosecution of all patent applications. This duty requires that inventors and their attorneys provide the United States Patent and Trademark Office with a list identifying relevant publications, patent applications, patents, legal proceedings, written rejections from patent examiners, and sales, both public and confidential. “Relevant” means relevant to the claims. The consequences of failing in this duty can be severe, namely, a holding of inequitable conduct. Inequitable conduct, in the patenting context, requires two prongs—materiality of the …
Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, 7 J. Marshall Rev. Intell. Prop. L. 412 (2008), Peter K. Yu
UIC Review of Intellectual Property Law
Commentators have attributed China’s piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities. They have also cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country’s rapid economic transformation and accession to the WTO. This provocative essay advances a third explanation. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top …
The Paradox Of Confucian Determinism: Tracking The Root Causes Of Intellectual Property Rights Problem In China, 7 J. Marshall Rev. Intell. Prop. L. 454 (2008), Wei Shi
UIC Review of Intellectual Property Law
This article attempts to track China’s intellectual property rights (“IPR”) enforcement problem through exploring its fundamental institutional defects that fuels impunity of, or at least fails instilling an ethos hostile to, IPR infringements. By examining China’s philosophical and institutional predisposition, this article argues that counterfeiting and piracy are not problems caused by the Confucian ethics, as the conventional wisdom underscores, but rather, among other things, a unique political phenomenon resulting from the systemic dystrophy fundamental to the institutional development. This article concludes that, to a large extent, the IPR enforcement problems in China are attributed to its unique bureaucracy characterized …
A Comparison Between The Judicial And Administrative Routes To Enforce Intellectual Property Rights In China, 7 J. Marshall Rev. Intell. Prop. L. 529 (2008), Jeffery M. Duncan, Michelle A. Sherwood, Yuanlin Shen
A Comparison Between The Judicial And Administrative Routes To Enforce Intellectual Property Rights In China, 7 J. Marshall Rev. Intell. Prop. L. 529 (2008), Jeffery M. Duncan, Michelle A. Sherwood, Yuanlin Shen
UIC Review of Intellectual Property Law
Over the past two decades, a sophisticated intellectual property law system has developed in support of China’s transition to economic superpower. In today’s global economy, it is crucial that international marketers understand how to navigate this new system to best protect their intellectual property rights. China allows for two distinct procedures by which intellectual property assets may be protected, one judicial and the other administrative. Each choice holds distinct advantages and disadvantages for a party seeking to enforce its rights. Making the best choice involves familiarization with the particulars of each procedure and gauging the likelihood of a successful outcome. …
Ksr And Standards Of Inventive Step: A European View, 8 J. Marshall Rev. Intell. Prop. L. 14 (2008), Paul Cole
Ksr And Standards Of Inventive Step: A European View, 8 J. Marshall Rev. Intell. Prop. L. 14 (2008), Paul Cole
UIC Review of Intellectual Property Law
The United States Supreme Court decision in KSR International Co. v. Teleflex Inc. raises many questions, most importantly, how the test for obviousness applied in the United States (“U.S.”) now compares with that applied in the United Kingdom (“U.K.”) and by the European Patent Office (“EPO”). In seeking to answer those questions, this article explores the history of obviousness and the tests for inventive step in the United States, the U.K. and the European Patent Office. A comparison of the United States Patent and Trademark Office and EPO examination guidelines, suggests that it would have been a good idea to …
Intellectual Property Enforcement: A Reality Gap (Insufficient Assistance, Ineffective Implementation)?, 8 J. Marshall Rev. Intell. Prop. L. 47 (2008), Timothy P. Trainer
Intellectual Property Enforcement: A Reality Gap (Insufficient Assistance, Ineffective Implementation)?, 8 J. Marshall Rev. Intell. Prop. L. 47 (2008), Timothy P. Trainer
UIC Review of Intellectual Property Law
The World Trade Organization’s (“WTO”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) promised to standardize world-wide intellectual property rights (“IPR”) enforcement procedures, and thus, facilitate trade and commerce between member nations. However, the TRIPS implementation transition of many less developed and developing nations has resulted in a much lower IPR enforcement standard than the drafters of TRIPS envisioned. This, coupled with increased world-wide trade in counterfeit goods, has created friction between the developing nations with lower IPR enforcement and the developed nations with higher IPR enforcement. Consequently, many nations, including the United States, have entered into Free Trade …
Trademarks And The Beijing Olympics: Gold Medal Challenges, 7 J. Marshall Rev. Intell. Prop. L. 433 (2008), Doris E. Long
Trademarks And The Beijing Olympics: Gold Medal Challenges, 7 J. Marshall Rev. Intell. Prop. L. 433 (2008), Doris E. Long
UIC Review of Intellectual Property Law
There is no question that the Summer Olympics in Beijing pose a tremendous marketing opportunity. They also pose a great opportunity for the development of effective techniques for enforcing intellectual property rights. China has already enacted special regulations governing the protection of Olympic symbols and has established special regulations governing the enforcement of those regulations. Yet many of the cultural and political issues that impact China’s enforcement activities in other arenas (including counterfeiting and piracy of IP protected goods and services) remain problematic. Furthermore, while the Olympic symbols may be the subject of heightened protection, cultural perceptions of the differences …
Virtual China, 7 J. Marshall Rev. Intell. Prop. L. 469 (2008), Steven Hetcher
Virtual China, 7 J. Marshall Rev. Intell. Prop. L. 469 (2008), Steven Hetcher
UIC Review of Intellectual Property Law
Although the Chinese government has devoted significant resources to censoring the online activities of its citizens, it may soon be facing a new challenge. Virtual-world computer games in which player controlled personas interact in cyberspace are growing in both sophistication and popularity. In such games, the very actions of the characters may represent banned themes which unfold in real time. These lucrative games do not lend themselves to the traditional text-based censorship techniques and site blocking may not be feasible for economic reasons. A deeper understanding of the threat virtual-world gaming represents to Chinese censorship efforts can be gained by …
Striking The "Rights" Balance Among Private Private Incentives And Public Fair Uses In The United States And China, 7 J. Marshall Rev. Intell. Prop. L. 488 (2008), Llewellyn Joseph Gibbons, Xiao Li Wang
Striking The "Rights" Balance Among Private Private Incentives And Public Fair Uses In The United States And China, 7 J. Marshall Rev. Intell. Prop. L. 488 (2008), Llewellyn Joseph Gibbons, Xiao Li Wang
UIC Review of Intellectual Property Law
Any economically efficient intellectual property rights system must contain a balance between the required creativity and innovation needed to obtain the intellectual property rights and the economic investment needed to obtain that level of creativity. Most intellectual property rights systems are uniform across all industries. However, this results in inefficiencies in certain industries that may need more or less intellectual property rights protection than others. Governments that attempt to correct the inefficiencies can create long-term consequences in the quality or quantity of new creative works. On one hand, granting more intellectual property rights to certain industries may result in spoilage …
The Controversy Surrounding Continuing Applications And Requests For Continued Examination, 7 J. Marshall Rev. Intell. Prop. L. 545 (2008), Scott D. Barnett
The Controversy Surrounding Continuing Applications And Requests For Continued Examination, 7 J. Marshall Rev. Intell. Prop. L. 545 (2008), Scott D. Barnett
UIC Review of Intellectual Property Law
On August 21, 2007, the USPTO published new rules altering the manner in which continuing applications and requests for continued examination could be filed. These new rules represented a drastic departure from traditional practice, and consequently, generated a considerable reaction from the patent community. While some members of the patent community supported the new rules, many others felt that the rules would be insufficient in promoting the USPTO’s goals, and served mainly as an unnecessary roadblock to good-faith patent prosecution. Prior to the rules going into effect, they were challenged in the case Tafas v. Dudas. In Tafas, the district …
Why Pay For What's Free?: Minimizing The Patent Threat To Free And Open Source Software, 7 J. Marshall Rev. Intell. Prop. L. 595 (2008), Kirk D. Rowe
UIC Review of Intellectual Property Law
The growing popularity of free and open source software as a viable alternative to proprietary software has made it an unwitting participant in an inevitable intellectual property law confrontation that will pit patent against copyright. Where proprietary software is primarily protected by patents, which seek to exclude others from the use of specific ideas, open source software utilizes a variation of copyright protection, which seeks to force the inclusion rather than the exclusion of third parties’ access to expression. Because these methods of protection are as different as the software models themselves, it is difficult to predict the outcome of …
Copyright Misuses, Fair Use, And Abuse: How Sports And Media Companies Are Overreaching Their Copyright Protections, 7 J. Marshall Rev. Intell. Prop. L. 621 (2008), Cory Tadlock
UIC Review of Intellectual Property Law
A recent FTC complaint has generated questions about the legality and effects of blanket copyright warnings issued by large sports and media companies. Copyright warnings from the NFL, MLB, and major motion picture studios often assert that no use whatsoever of their materials can be made without express permission, contrary to several provisions of U.S. copyright law. This comment proposes limiting the content and language of such warnings so consumers have a clearer view of what copyright law allows, and are not intimidated into foregoing their rights to use protected works. Exceptions like fair use and the idea-expression dichotomy prevent …
Chief Judge Paul R. Michel's Address To The Federal Circuit Judicial Conference On The State Of The Court, 7 J. Marshall Rev. Intell. Prop. L. 647 (2008), Paul R. Michel
UIC Review of Intellectual Property Law
On May 15, 2008, Chief Judge of the United States Court of Appeals for the Federal Circuit Paul R. Michel delivered the annual State of the Court speech. Chief Judge Michel delivered this speech during the Federal Circuit Judicial Conference, held at the Grand Hyatt hotel in Washington. The text of that speech and the corresponding graphics appear here.
Protection Of U.S. Trade Secret Assets: Critical Amendments To The Economic Espionage Act Of 1996, 7 J. Marshall Rev. Intell. Prop. L. 656 (2008), R. Mark Halligan
Protection Of U.S. Trade Secret Assets: Critical Amendments To The Economic Espionage Act Of 1996, 7 J. Marshall Rev. Intell. Prop. L. 656 (2008), R. Mark Halligan
UIC Review of Intellectual Property Law
In order to protect the economic interests of the United States, the Economic Espionage Act was enacted in 1996. Although intended to prevent and deter trade secret theft, the EEA is limited to criminal prosecutions. Critical amendments to the EEA are required to create a civil cause of action in the new information-based economy and the international marketplace. The following proposed amendments to the EEA provide a federal civil cause of action, allowing companies to protect trade secret assets and to ensure the continued growth and protection of trade secret assets in the international marketplace.
Post-Quanta, Post-Sale Patentee Controls, 7 J. Marshall Rev. Intell. Prop. L. 682 (2008), Harold C. Wegner
Post-Quanta, Post-Sale Patentee Controls, 7 J. Marshall Rev. Intell. Prop. L. 682 (2008), Harold C. Wegner
UIC Review of Intellectual Property Law
In Quanta Computer, Inc. v. LG Electronics, Inc., the Supreme Court recalibrated the balance between the rights of a patentee to contractually control the post-sale transfer and the use of patented goods. Specifically, the Court extended the doctrine of patent exhaustion to cover the exhaustion of patents not recited in the license, as well as the practice of technology that does not infringe any patent, but which can only be used in a manner by customers that would infringe a patent. While Quanta arose out of facts concerning computer technology, the implications of this decision will be widespread, permeating diverse …
Throwing Judge Bryson's Curveball: A Pro Patent View Of Process Claims As Patent-Eligible Subject Matter, 7 J. Marshall Rev. Intell. Prop. L. 701 (2008), Christopher A. Harkins
Throwing Judge Bryson's Curveball: A Pro Patent View Of Process Claims As Patent-Eligible Subject Matter, 7 J. Marshall Rev. Intell. Prop. L. 701 (2008), Christopher A. Harkins
UIC Review of Intellectual Property Law
Can a baseball pitcher patent a method of throwing a curveball? On May 8, 2008, Judge Bryson posed that hypothetical as a way of stressing a point during the oral argument of In re Bilski, one of the most highly-attended hearings in the twenty-five year history of the Federal Circuit. In the Bilski case, the Federal Circuit will decide whether to embrace a new patentability test that redefines what is patent-eligible subject matter in the United States, or to create a fourth no-no to patent eligibility. At stake are many computer software patents and business method patents that form the …
Honoring Trademarks: The Battle To Preserve Native American Imagery In The National Collegiate Athletic Association, 7 J. Marshall Rev. Intell. Prop. L. 735 (2008), Ian Botnick
UIC Review of Intellectual Property Law
On August 5, 2005, the National Collegiate Athletic Association introduced its plan to end the use of Native American mascots, nicknames and imagery. Schools were required to change their offensive nicknames and mascots and were forced to stop using trademarks bearing Native American imagery. The NCAA ban presents the question of whether schools affected by the ban can bring a trademark action against the NCAA. One interpretation of trademark law provides a school with no redress because the NCAA has not created a competing mark. However, the other interpretation of trademark law provides a school with a valid trademark claim …